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Criminal Miscellaneous No. 369/0 of 1973, decided on 24th January 1974.

‑‑ S. 561‑A‑Quashment of criminal proceedings‑Mere filing of civil suit ‑No bar to continuation of criminal case even if subject matter same in both cases‑No inflexible rule requiring stay of criminal case pending civil litigation‑Person defrauded has two remedies open: to get accused punished and to recover amount‑‑ Proceedings in either case independent of other and invoked for an entirely different purpose‑Penal Code (XLV of 1860), Ss. 406 & 420.

Mere filing of a civil suit is not a bar to the continuation of the criminal case and even if the civil as well as the criminal proceedings relate to the same subject‑matter there is no inflexible rule that the criminal proceedings must be stayed pending the civil litigation. As a matter of fact under certain circumstances, for instance on the facts of the present case itself the person defrauded has two remedies open to him, one to get the accused punished for the fraud played by him and the second, to recover the amount of which he has been deprived of by the accused. The first is through a criminal case and the second through a civil suit. Each proceeding is independent of the other and is invoked for entirely a different purpose.

Ghulam Muhammad v. State, P L D 1971 Kar. 937; Muhammad Altar v. State P L D 1968 S C 281; Abdul Ghani V. Abdul Khalid Rehmani 1971 S C M R 106; Dodo Khan v. Jalalud Din P L D 197.3 Kar. 554; Muhammad Ahmad v. State 1972 S C M Rr 85 and Rabnawaz v. State, P L D 1965 Lah.

Muhammad Arif and Ch. Muhammad Anwar Khan for Petitioner.

Sh. Mohammed Ashraf for Respondent No, 1.

Mian Qamar‑ud‑Din for the State.

This is an application by Rehmatullah son of Khuda Bakhsh, uncles section 561‑A, Cr. P. C. read with sections 435 and 439, Cr. P. C. for quashment of criminal proceeding under section 4061/420, P. P. C. pending ago against him in the Court of Assistant Commissioner Jaranwala, titled Abdul Aziz v. Rehmatullah." These proceedings were instituted against the petitioner by Abdul Aziz respondent No. I through a private complaint filed on 23-2-1973.

2. The allegation in the complaint was that Rehmatullah petitioner let- out his shop, consisting of two rooms, situated an Layallpur Road in Jaranwala, to Abdul Aziz respondent No. 1. The rent was fixed at Rs. 375 pet month and Rehmatullah petitioner (the landlord), received a sum of Rs. 4,500 as advance rent. It is alleged further that instead of giving the possession of the shop to the lessee (respondent No 1) Rehmatullah petitioner gave it on rent to some one else. As a result Abdul Aziz respondent No. 1 filed a complaint under section 406/420, P. P. C. against the petitioner. Subsequently, on 1 5‑3‑1973 Abdul Aziz also filed a suit for recovery of Rs. 4,500 from the petitioner, in the Court of Additional Administrative Civil Judge, Layallpur. Both the criminal case and the civil suit are based on the same facts.

3. The main ground urged by the petitioner's counsel before ma in support of the quashment was that the transaction is basically of civil nature and secondly that in the presence of a civil suit on the same ground, the criminal proceedings should either be quashed or be stayed. Both sides cited ease‑law. The learned counsel for the petitioner relied on:‑‑

(i) Ghulam Muhammad v. State (P L D 1971 Kar. 937).

(ii) Muhammad Akbar v. State (P L D 1968 S C 281).

(iii) Abdul Ghani v. Abdul Khalid Rehmani (1 9 71 S C M R 106).

On the other hand the learned counsel for respondent No. 1, relied on:‑‑

(i) Dodo Khan v. Jalalud Din (P L D 1971 Kar. 554

(ii) Muhammad Ahmad v: State (1972 S C M R 85).

(iii) Rabnawaz v. State (P L la 1965 Lah. 676); and certain other cases.

5. Having gone through all these authorities. I am inclined to feel that the authorities cited by the learned counsel for Abdul Aziz respondent No. 1, are attracted to the facts of the present case. As a matter of fact the observations in Muhammad Akbar's case (P L D 1968 S C 281) relied upon by the petitioner, were clarified by their Lordships of the Supreme Court in their own subsequent‑judgment namely Muhammad Ahmad v. State (1972 S C M R 85). It has now been more or less settled that mere filing of a civil suit is not bar to the continuation of the criminal case and even if the civil as well as the criminal proceedings relate to the same subject‑matter, there is no inflexible rule that the criminal proceedings must be stayed pending the civil litigation. As a matter of fact under certain circumstances, for instance on the facts of the present case itself the person defrauded has two remedies open to him; one to get the accused punished for the fraud played by him and the second, to recover the amount of which he has been deprived of by the accused. The first is through a criminal case and the second through a civil suit. Each proceeding is independent of the other and is invoked for entirely a different purpose. As a result I do not see any reason why the cheated person who sets the machinery of criminal law in motion for getting the accused persons punished, in they interest of the entire community, should be deprived of the remedy of retrieving the money of which he has been defrauded and conversely, why the person who cheats should escape the liability to be punished merely because he is also required to repay the money through civil proceeding and why should such punishment be even delayed.

5. As a result of the above discussion, I feel that there is no merits in the application and the same is therefore, dismissed.

Petition dismissed.

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