ORDER SHEET
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ORDER WITH SIGNATURE OF JUDGE
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1) For katcha peshi.
2) For hearing of MA 2059/2007.
3) For hearing of MA 2525/2007.
Objection to application under Section 561-A at flag “A”.
20.8.2007.
Mr. Rao M. Shakir Naqeshbandi for applicant.
Mr. Muhammad Aziz Khan for the complainant.
Mr. Hyder Shaikh State counsel.
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The applicant has resorted to assail the orders passed by two courts below in Crime No. 240/2007 under section 489-F PPC registered at police station Ferozeabad assailing that the impugned orders be set aside, consequently FIR be quashed.
Precisely the facts leading to the case are that complainant Syed Abdullah Khalil is the owner of Textile Mill carrying on business in the name and style of Sabir Textile Weaving Factory and manufacturers and exporter of allied textile goods. During the course of the business came in contact with M/S Pan Asia Freight International, Karachi. During the period from 8th March 2006 up to 10.11.2006 due to business deal at the behest of Syed Abdullah Khalil some business commodities were forwarded as a consequence thereof cheque No. 5571736 was issued by the applicant in favour of the complainant, which was dishonoured on presentation to the Bank, FIR No. 240/2007 was lodged.
During the course of arguments when the learned counsel for applicant was confronted with the position that impugned orders does not suffer from inherent defects and the proceedings against the applicant could be quashed at this stage. It is contended that in respect of disputed cheque, the applicant has resorted to file Civil suit No. 184/2007 which is pending adjudication before this Court, on the basis of identical allegation Cr. Complainant has been filed in order to avoid conflict in evidence as well as judgment at the time of final adjudication therefore criminal proceedings be stayed. In support of the above contentions reliance has been placed on the case of ABDUL HALEEM VS. THE STATE AND OTHERS (1982 SCMR 988) and A. HABIB AHMED VS. M.K.G. SCOTT CHRISTIAN AND 5 OTHERS (PLD 1992 SC 353).
What has emerged from the above ruling is that civil litigation does not have effect negating the criminal liability of the accused; if the facts alleged disclose the commission of criminal offence even if the impugned documents are the same both in civil and criminal cases. The general rule approved in these authorities is to the effect that it may however, be advisable to stay criminal proceedings until the conclusion of civil litigation between the parties so as to avoid a conflict of finding on the same questions by civil and criminal courts.
Learned State counsel has fairly conceded to the legal proposition.
Mr. Muhammad Aziz Khan has also conceded to the effect that during the process of the civil litigation, criminal proceedings initiated by the complainant be stayed without modification of the impugned orders passed by the Courts below.
I am inclined to stay criminal proceedings during the pendency of civil litigation. Accordingly Criminal Misc. is allowed to the above extent. After the disposal of the civil litigation, criminal proceedings shall be tried by the competent Court in accordance with law.
J U D G E
Muhammad Abbas S/O Muhammad Nazar Ahmed lodged report that on 8th May 2006 that he received mobile phone call from No. 021-8383952 from one Arshad who demanded Rs. 2,50,000/- as Bhatta otherwise he will kidnapped including him family members and would kill him. On 15th May 2006 complainant received another call, threats were issued to arrange for Bhatta, that person directed the complainant to deliver him the demanded money on 17.5.2006 at 5 P.M. near Mera Qabrustan Moosa Lane. Complainant informed the police of Baghdadi submitted an application upon which the police took action. As per promise complainant and his friend Intizar Hussain reached along with money on the pointed place, SI Rizwan was already on patrolling at 5 P.M., five persons came, two of them stood behind were boys came near the complainant who disclosed his name handed over Rs. 20,000/- but the assailant has insisted upon Rs. 2,50,000/-. During this process SI Rizwan along with police employees tried to arrest five assailants, they opened fire, police arrested Jehangir @ Ibrahim, Sajid Ali @ Kala, who disclosed the name of their companion as Ghulam Farid and Latif. ASI Rizwan searched for the arrested accused and secured T.T. Pistol along with cash of Rs. 20,000/- which were taken into possession. Such mashirnama was prepared. Subsequently accused were challaned to face the trial.
Mr. Choudhry Muhammad Rizwan learned counsel for applicants has contended that the applicants are witnesses in murder case of Abid Tawana Crime No. 235/2004 under section 302 PPC registered at Police Station Maripur Karachi pending adjudication before Sessions Judge Karachi West. The complainant and his brother Rana Mushtaq and Rana Ilyas started extending threats that if the applicants again appeared before the learned Sessions Court and gave evidence against them they would involved them in a false crime. In order to take the revenge the complainant and his associates have started blackmailing the applicants. The malafides of the applicants are borne out as on 16th May 2006 in the morning they were proceeded at their job at Karachi Port Trust than the complainant along with his brother Rana Mushtaq along and police mobile arrested Sajid Ali @ Kala. They were apprehended near the main gate and the matter was reported to police. The complainant party is bent upon to involve the applicants in a case of encounter with police, did not secure empties or recovered any other articles from the spot.
Learned counsel for complainant Mr. Shaukat Hayat as well as learned counsel appearing for State has opposed this revision application on the ground that the applicants ought to have first moved for seeking redress. Revision Application is not sustainable in law, liable to be dismissed.
It is settled law that Section 561-A Cr.P.C. confers upon High Court for hearing powers to make such orders as may be necessary to give effect to any order under Code of Criminal Procedure or to prevent abuse of process of any Court to secure the ends of justice. These powers are very wide but ordinarily High Court does not quash proceedings under Section 560-A or 265-K Cr.P.C but in exceptional circumstances to prevent abuse of the process of any Court. In this context the reference is laid on 1994 SCMR 798, 1997 P.CR.L.J. 1297 and 2003 P.CR.L.J. KARACHI 2097. In PLD 2004 SC 798 following has been observed:-
“Section 561-A—Legislative History and purpose which was sought to be secured through incorporation of Section 561-A Cr.P.C in the Code and its true import—Provision of Section 561-A Cr.P.C. cannot be used to override the express provisions of law to offer just another remedy where a remedy already exits or to circumvent the normal course of law—Jurisdiction under Section 561-A Cr.P.C is an extraordinary one preserved only for extraordinary situations which power must be exercised sparingly with utmost caution only in exceptional cases and not as a matter of routine.”
By virtue of above authority the course available to the applicant was to resort to the remedy available under the Criminal Procedure Code. In case of rule laid down in 2005 SCMR 1544(d) rule enunciated is that a criminal case be decided on merits after recording prosecution evidence and shortcut provided under Section 249-A Cr.P.C or to under 265-K Cr.P.C must be avoided.
The upshot of the above discussion is that Cr. Misc. Application is devoid of merits hereby stands dismissed. These are the reasons for the short order dated 17.10.2006 whereby the Cr. Misc. was dismissed.
J U D G E