High court set aside ordered of session court order of stopping criminal trial .






JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE.
(JUDICIAL DEPARTMENT)
Criminal Miscellaneous No.3568-M of 2024.
Zahid Maqsood Butt Versus
The State, etc.
JUDGMENT
DATE OF HEARING:
07.06.2024
PETITIONER BY:
Barrister Ahmed Raza Kazim.
STATE BY:
Ms. Asmat Parveen, Deputy District 
Public Prosecutor with Bilal, SI.
RESPONDENT BY:
S.M. Zeeshan Mirza & Yamna Baig,
Advocates.
MUHAMMAD AMJAD RAFIQ, J:- Through this Criminal 
Miscellaneous under Section 561-A of Cr.P.C., petitioner Zahid 
Maqsood Butt, being complainant of case FIR bearing No.38 dated 
02.02.2015 registered under section 408 PPC at Police Station New 
Anarkali, Lahore has challenged the vires of order dated 20.12.2023
passed by learned Additional Sessions Judge, Lahore whereby a 
criminal revision filed by respondent No.02 Usman Khalid, accused 
of above case against the order dated 17.06.2023 passed by learned 
Magistrate Section-30, Lahore, was accepted and proceedings in 
criminal trial (case FIR No.38 of 2015) were ordered to be stopped 
under section 249 of Cr.P.C.
02.
Criminal action was initiated against respondent No.02 (the 
respondent)with the narration that he being manager/employee has 
misappropriated an amount of Rs. 5 crores, therefore, matter was 
pending trial on a charge under section 408 PPC when an application 
was filed by the respondent to stay the criminal proceedings because 
he was not the employee but the partner of the petitioner and in this 
respect the respondent, his brother and mother have filed suit for 
declaration, cancellation of document, rendition of accounts and 
Crl. Misc. No.3568-M of 2024 2
recovery etc. titled “Mst. Robina Khalid etc. VS Zahid Maqsood Butt”
claiming therein an amount of Rs. 9 Crores due against the petitioner. 
Such application though was dismissed by the trial Court yet allowed 
by the learned revisional Court with following observations;
“Said suit was instituted on 22.10.2015. Process of criminal litigation 
and civil litigation continued since 2015 till today side by side. Now 
in criminal trial complete prosecution evidence has been recorded. 
Statement of petitioner u/s 342 Cr.P.C. is also recorded and the case is 
fixed for final arguments. Allegation punishable u/s 408 PPC depends 
whether petitioner was an employee of complainant or not, therefore, 
question of entrustment does not arise. Same question is before civil 
court. If present case is decided earlier, the same would prejudice civil 
suit pending between the parties while question regarding status of 
petitioner as employee or business partner is a civil issue/matter to be 
decided in civil suit. In para No.6 of plaint of said suit, petitioner has 
contended that he invested Rs. 45 million as partner in the business of 
complainant through bank draft of his account deposited in the 
account of complainant. It is to be proved by the petitioner that 
amount of Rs. 45 million was transferred from his bank account in the 
account of complainant. In these circumstances, it is necessary that 
his civil suit be decided earlier and then the present case be decided.”
 (Emphasis supplied)
The learned Additional Sessions Judge has passed the impugned 
order presumably on the strength of case laws cited in the impugned 
order. Basic judgment was “MUHAMMAD AKBAR versus (1) THE 
STATE AND (2) Maulvi MUHAMMAD YASIN KHAN” (PLD 1968 
Supreme Court 281), wherein an FIR was registered for an alleged 
forcible and dishonest snatching of a bus. Dispute of many buses was 
already pending trial in a civil suit between the partners due to 
dissolution of partnership and bus, subject matter of FIR was also 
included therein. The parties have acquiesced the status of each other
in that case; whereas in the present case complainant/petitioner has 
not conceded the status of accused/respondent as partner, nor brought 
any suit in this respect; therefore, present case hardly had any 
identical features. Thus, learned Additional Sessions Judge has 
wrongly placed reliance on the cited case as well as case laws
mentioned in the impugned order. 
03.
Now coming to the legal position of the case; it is trite that 
civil and criminal proceedings can go side by side provided subject 
matter before civil Court and criminal Court is the same and is 
Crl. Misc. No.3568-M of 2024 3
required to be determined by civil court first being Court of ultimate 
jurisdiction. Connotation “same subject matter” does not mean only a 
fact in issue relating to such subject but the subject matter as a whole. 
In the present criminal litigation subject matter is ‘misappropriation 
of amount’ whether as an employee or partner whereas in civil 
litigation matter is of ‘entitlement of amount’. Law does not permit 
any person to acquire disputed amount through misappropriation. If it 
is permitted, this would open an absurd practice of taking the law into 
one’s own hands, giving an air to a mechanism of private vengeance 
parallel to constitutional arrangement for judicial system of the 
country. Even in civil jurisdiction when possession is unlawfully 
taken from an illegal occupant of land, Court is bound to restore it to 
man in possession as per section 9 of the specific Relief Act, 1877;
same is the mandate of section 145 of Cr.P.C. Thus, law is very clear 
on the subject. The observation of learned Additional Sessions Judge 
that “If present case is decided earlier, the same would prejudice 
civil suit pending between the parties while question regarding status 
of petitioner as employee or business partner is a civil issue/matter to 
be decided in civil suit” shows his lack of knowledge on the subject. 
It is settled principle of law that decision of a criminal Court does not 
affect any question pending in civil Court between same parties 
because the outcomes and standard of proof in both proceedings are
different, i.e., ‘preponderance of evidence’ in civil cases and ‘proof 
beyond reasonable doubt’ in criminal cases. Thus, neither the 
principle of Res-judicata nor principle of Double jeopardy is applied 
in any manner. Case reported as “TARIQ IRSHAD Versus SPECIAL 
JUDGE and others” (2022 P Cr. L J 1050), and case approved for 
reporting as “Rasoolan Bibi versus The State etc.” (Writ Petition No. 
82843 of 2023) decided on 14.05.2024 are referred in this respect.
04.
Learned Counsel for the petitioner while referring cases 
reported as “THE STATE through Prosecutor General Sindh Versus 
SHAHZAD RIAZ and others” (2021 P Cr. L J 656):“GULAN Versus 
The STATE and 2 others” (2015 YLR 190): “S. MASOODUL 
Crl. Misc. No.3568-M of 2024 4
HASSAN NAQVI Versus THE STATE” (1986 P Cr. L J 1272) urged 
that when the evidence was complete and case was fixed for final 
arguments, the learned revisional Court should have directed the trial 
Court for decision of case on merits because if the fact in issue 
‘criminal breach of trust by an employee’ is not proved, then Court 
can see under sections 237/238 of the Code of Criminal Procedure, 
1898 (Cr.P.C.) as to what offence has in fact been committed, or at 
the most can acquit the accused but not to stop the proceedings under 
section 249 of Cr.P.C., which is meant for a situation when evidence 
on record is not sufficient to convict the offender but Court expects a 
later progress or development into the matter. Learned Deputy 
District Public Prosecutor also supported the above contention. 
However, learned Counsel for the respondent defended the impugned 
order on the ground that it is discretionary with the Court to order for 
stay of proceedings which cannot be interfered, and in this respect 
placed reliance on reported cases referred in the impugned order as
“MUHAMMAD AKBAR versus (1) THE STATE AND (2) Maulvi 
MUHAMMAD YASIN KHAN” (PLD 1968 Supreme Court 281),
“MUHAMMAD TUFAIL versus THE STATE AND ANOTHER”
(1979 SCMR 437), “ABDUL HALEEM Versus THE STATE AND 
OTHERS”(1982 SCMR 988), “RIAZ-UL-HAQ versus MUHAMMAD 
ASHIQ JORAH, JUDICIAL MAGISTRATE, PIND DADAN KHAN 
and 2 others” (2000 SCMR 991), “A. HABIB AHMED versus 
M.K.G. SCOTT CHRISTIAN and 5 others” (PLD 1992 Supreme 
Court 353), “SHERAZ AHMAD and others Versus FAYYAZ-UD-DIN 
and others” (2005 SCMR 1599), “ABDUL AHAD Versus AMJAD 
ALI and others” (PLD 2006 Supreme Court 771), “AKHLAQ 
HUSSAIN KAYANI Versus ZAFAR IQBAL KIYANI and others”
(2010 SCMR 1835).The learned Counsel for the respondent however 
conceded that such discretion has not been exercised by the learned 
trial Court. It has been observed that the learned Additional Sessions 
Judge has also not discussed in the impugned order the contours of 
order of trial Court so as to override or supersede the discretion
exercised by the Magistrate. The cited judgments were examined 
Crl. Misc. No.3568-M of 2024 5
carefully which hardly apply on the facts of present case. Gist of such 
judgments has been referred in later part of this order to show in what 
situations the criminal proceedings can be stayed. However, in 
following two judgments from above cluster, Supreme Court has 
declined to order for stay of criminal proceedings; they are as under;
Petitioner obtained an amount of Rs. 83,000/- for sending the respondent 
abroad and issued a receipt in this respect. Petitioner claimed such 
receipt as forged and sought stay of criminal proceedings, which request 
was turned down even by the Supreme Court. (1995 SCMR 1621).
An agreement to sell for a landed property between Bahawal Khan and 
Sharif Hussain was brought before civil court against the legal heirs of 
Sharif Hussain for specific performance and legal heir got lodged 
criminal case against Bahawal Khan for forgery. Quashing and stay of 
criminal proceedings were refused up to the Supreme Court. (1979 
SCMR 437).
05.
Learned counsel for the petitioner urged that section 249 
Cr.P.C. though empowers the Magistrate to stop the proceedings but 
guidelines are not available as to when, where and in what situations
it can be invoked. It was attended accordingly, reading of section and 
relevant provisions of Cr.P.C. coupled with examining of relevant 
case laws, contours of section 249 Cr.P.C. needs to be looked again. 
For the sake of reference section is reproduced;
249. Power to stop proceeding when no complaint: In any 
case instituted otherwise than upon complaint, a Magistrate 
of the First Class, or with the previous-sanction of the 
Sessions Judge, any other Magistrate may for reasons to be 
recorded by him, stop the proceedings at any stage without 
pronouncing any judgment either of acquittal or conviction; 
and may thereupon release the accused.
This section authorizes the Magistrate to stop the criminal 
proceeding, at any stage, initiated through any mode expect through 
private complaint, without pronouncing the judgment either of 
acquittal or conviction and then release the accused. Order passed by 
Magistrate under this section is required to be backed by reasons 
which makes it a judicial order, amenable to revisional jurisdiction; 
however, it does not seek execution of bond by the accused 
conditional to his release. This connotation is very strong because 
wherever in Cr.P.C. the word ‘release’ appears it is made conditional 
to executing a bond or sufficient security. Sections 57(2), 124(6), 

Crl. Misc. No.3568-M of 2024 6
173, 426, 435, 466, 496 and 497 of Cr.P.C., are referred in this 
respect. Whereas like section 249 of Cr.P.C., sections 59(3) and 
124(1) Cr.P.C., also talk about a simple release without executing a 
bond or providing sufficient security. Bond is executed by the 
accused as an assurance to appear before the Court but when he does 
not remain in the process any more, execution of bond is not 
required. Cases reported as “S. MASOODUL HASSAN NAQVI 
Versus THE STATE” (1986 P Cr. L J 1272); “MUHAMMAD 
YAMIN Versus The STATE” (2022 YLR Note 10); “Mst. 
SARDARAN BIBI versus THE STATE” (PLD 1990 Karachi 233),
are referred in this respect. 
6. Section 249 of Cr.P.C., cannot be think of a remedy available to 
order for stay of criminal proceedings because firstly, if the 
proceedings are pending through a private complaint, rescue under 
this section is not available; secondly, not requiring a bond for release 
of accused is an indicator that a novel situation has arisen in the 
proceedings which require a sine die adjournment of case without a 
time-bound schedule. Case reported as “GULAN Versus The STATE 
and 2 others” (2015 YLR 190), is referred in this respect. Thus, ‘to 
stop the proceeding’ stands distinguished to ‘stay of proceedings’ and 
‘stay of prosecution’. Stay of proceedings is done to meet the 
situation when further proceeding is conditional to an order to be 
made by other Court, the higher Court or by the government. 
Instances are like as under;
1. Where any person denies the existence of public right pursuant to 
an order made by magistrate for removal of nuisance and 
magistrate considers that there is reliable evidence of such denial, 
he shall stay the proceeding until the matter of the existence of 
such right has been decided by a competent Civil Court. (Section 
139-A Cr.P.C.).
2. On information that a dispute likely to cause a breach of the 
peace exists concerning any land or water or the boundaries,
Magistrate after inquiry can pass an order in favour of the party 
but if later finds that no such dispute exist, he shall stay the 
proceedings. (Section 145(5) of Cr.P.C.).
3. Stay of proceedings if prosecution of offence in altered charge 
requires previous sanction (Section 230 of Cr.P.C.).
Crl. Misc. No.3568-M of 2024 7
4. When during the course of an inquiry or trial, it appears to a 
magistrate that case is one which should be tried or sent for trial 
to the Court of Session or the High Court or by some other 
Magistrate in such district, he shall stay proceedings and submit 
the case, with a brief report explaining its nature, to the Sessions 
Judge or to such other Magistrate, having jurisdiction, as the 
Sessions Judge, directs. (Section 346 Cr.P.C.)
5. If any party intends and intimates the Court for filing of a transfer 
application of case, though it shall not require the Court to 
adjourn the case, but the Court shall not pronounce its final 
judgment or order until the application has been finally disposed 
of by the High Court. Section 526 (8) Cr.P.C.
6. Any matter pending before higher Court with an injunctive order 
as not to pronounce final judgment. 
7. Matter for witness protection is pending with government under 
Witness Protection Act, 2018. 
8. Stay of criminal proceedings due to pending matter in any other 
Court conditional to further proceedings. 
7. Though there is no express provision in Cr.P.C., for stay of 
criminal proceedings on the ground that subject matter is pending 
determination before civil Court yet there is no specific prohibition in 
this respect. Therefore, trial Court is competent to stay criminal 
proceedings as held in case reported as “MUHAMMAD AKBAR 
versus (1) THE STATE AND (2) Maulvi MUHAMMAD YASIN 
KHAN” (PLD 1968 Supreme Court 281).
8.
‘Stay of prosecution’ is discontinuation of criminal 
prosecution on all or any of charges in order to give a go to 
government decision based on public policy which is regulated 
through section 10(3)(f) of the Punjab Criminal Prosecution Service 
(Constitution, Functions and Powers) Act, 2006 which says;
“at any stage of a trial before any trial court subordinate to the High 
Court before the judgment is passed, the Prosecutor General or any 
Prosecutor specifically authorized by him, may, for reasons to be 
recorded in writing, inform the court on behalf of the Government that 
the Prosecutor shall not prosecute the accused upon the charge and 
thereupon all proceedings against the accused shall be stayed and he 
shall be discharged of and from the same: 
Provided that such discharge shall not amount to an acquittal unless the 
court directs otherwise.”
Crl. Misc. No.3568-M of 2024 8
The above section is verbatim of section 265-L of Cr.P.C., which 
empowers the Advocate-General to seek stay of prosecution before
the High Court.
Likewise, when an accused is facing a charge containing one 
or more heads and is convicted in any of them, the rest of the charges 
can be withdrawn by the prosecution or the Court at its own can stay 
the inquiry into, or trial of such charges till the conviction attains 
finality through Court of appeal. (Section 240 Cr.P.C.)
9.
From the practice and procedure, it can be summarized that 
the most suitable situations to stop the proceedings under section 249 
Cr.P.C. could be like as under but are not exhaustive;
1) During the trial witnesses of case are reported to have gone 
abroad, or
2) Whereabouts of witnesses are not known, or
3) Witnesses have become absconders in another case.
4) Sanction for prosecution has not been received to the Court for 
taking cognizance.
5) Prosecution has recommended the case as not fit for trial in the
case review report under section 9(7) of the Punjab Criminal 
Prosecution Service (Constitution, Functions and Powers) Act, 
2006, (the CPS Act 2006) and Court considers that the 
evidence is forthcoming.
6) On receipt of an interim police report under section 173 of 
Cr.P.C. when prosecutor examines the reasons assigned for the 
delay in the completion of investigation and considers the 
reasons compelling, can request the Court for the 
postponement of trial as authorized under section 9(6) of the 
CPS Act, 2006.
Of course, before resorting to stop the proceedings in situations 
mentioned at serial No.1 to 3, the Court in order to procure the 
attendance of witnesses shall adopt coercive measures of the nature 
as mentioned in a case reported as “MUHAMMAD SHAFI Versus 
ADDITIONAL SESSIONS JUDGE, KHARIAN DISTRICT GUJRAT 
and 8 others” (PLD 2011 Lahore 551). Stoppage of proceedings is 
always contingent to return of witnesses for revival of situation from 
Crl. Misc. No.3568-M of 2024 9
the stage it was discontinued. Case reported as “Mst. SHIREEN TAJA 
versus THE STATE and 2 others” (2002 P Cr. L J 159) is referred in 
this respect.
10.
 No settled criterion is available to stay criminal proceedings 
and it varies from case to case confining to pure discretion of the 
Court; however, for guidance we have some precedents of Supreme 
Court which the learned Counsel for the complainant has highlighted 
and learned judge has made it part of impugned order and are also 
referred in para-4 of this order; gist of such precedents is as follows;
Forged promissory note for the sale of motor car by father of petitioner 
was prepared in year 1997 while his father has already died in year 1992. 
Stay of criminal proceedings. (2010 SCMR 1835).
Civil suit regarding ownership of property had already been filed… 
proceedings in private complaint stayed. (PLD 2006 Supreme Court 
771).
An allottee of disputed quarter entered into agreement to sell with 
respondent and delivered the possession, both parties filed civil suits. 
Interim injunction was granted in favour of respondent. Quashing of 
criminal proceedings by High Court was converted to one stay of 
criminal proceedings by the Supreme Court. (1999 SCMR 1475).
In order to return overdraft facility availed of, petitioner surrendered his 
30% shares in favour of bank but same were sold out to persons dealing 
in stock market, such criminal misappropriation was brought into notice 
through criminal action by the petitioner but Special Judge (offences in 
banks) quashed the criminal proceedings, but Supreme Court converted 
it into stay of criminal proceedings till decision of civil matter. (PLD 
1992 Supreme Court 353).
Power of Attorney executed in favour of respondent was misused by 
him, civil suit was brought for cancellation of said document and 
criminal action was also initiated for preparation of forged agreement to 
sell on the basis of said power of attorney. Proceedings quashed by the 
High Court but stood converted to stay of criminal proceedings by the 
Supreme Court till the decision of civil suit. (1982 SCMR 988).
Company lodged a complaint of embezzlement against his employee 
who claimed that he was coerced upon and got documents signed 
therefore, on the very next day he had brought a civil suit. Criminal 
proceedings were ordered to be stayed. (2000 SCMR 991).
Acquittal of accused under section 249-A of Cr.P.C. on the ground that 
on same subject matter civil suit is pending was set aside by the Supreme 
Court with the consent of parties that pending civil suit, criminal 
proceedings shall remain stayed. (2005 SCMR 1599).
Petitioner obtained an amount of Rs. 83,000/- for sending the respondent 
abroad and issued a receipt in this respect. Petitioner claimed such 

Crl. Misc. No.3568-M of 2024 10
receipt as forged and sought stay of criminal proceedings, which request 
was turned down even by the Supreme Court. (1995 SCMR 1621). 
An agreement to sell for a landed property between Bahawal Khan and 
Sharif Hussain was brought before civil court against the legal heirs of 
Sharif Hussain for specific performance and legal heir got lodged 
criminal case against Bahawal Khan for forgery. Quashing and stay of 
criminal proceedings were refused up to the Supreme Court. (1979 
SCMR 437).
11.
Keeping in view the observations made in paragraph 3 & 4 
above, this Criminal Miscellaneous is allowed and impugned order 
passed by learned Additional Sessions Judge is, therefore, set aside 
with the direction to learned trial Court to decide the pending 
criminal case forthwith. 
(MUHAMMAD AMJAD RAFIQ)
 
 JUDGE
Approved for reporting:
 Judge


For more information call us 0092-324-4010279 Whatsapp Dear readers if u like this post plz comments and follow us. Thanks for reading .as you know our goal is to aware people of their rights and how can get their rights. we will answer every question, so we need your help to achieve our goal. plz tell people about this blog and subscribe to our youtube channel and follow us at the end of this post.








































 
































Comments

Popular posts from this blog

Property ki taqseem ,Warasat main warson ka hisa

Bachon Ka Kharcha Lena After separation | bachon ka kharcha after divorce | How much child maintenance should a father pay in Pakistan? Case laws about maintenance case.

Bachon ki custody of minors after divorce or separation