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Criminal petition decided on 14th May 1950.

S. 561 (A)‑Stay of proceeding‑Civil suit instituted prior to Criminal Case ors same matter‑‑Criminal Case stayed.

A I R 1933 Bom. 307 ; 6 Cr. L J 131 ; A .I R 1935 Sind 187, referred to.

A criminal proceeding shall not be allowed to continue until the decision of a civil suit provided that it is not a public prosecution and that the same subject‑matter has been brought before a Civil Court earlier than the complaint.

Muhammad Saleem Aslam, for Petitioner.

Respondent, in person,

This is an application for stay of criminal proceedings in a complaint instituted under section 498 Pakistan Penal Code, until the decision of a civil suit for dissolution of marriage between the parties The perusal of the relevant records indi cate that the main issue in the civil suit is whether the marital ties between the parties are subsisting or not. It is argued by the counsel for the petitioner that the determination of this question shall greatly decide the allegations set forth in the complaint. It is further disclosed that the civil suit was brought earlier than the complainant. My attention has been drawn to a Division ruling of Bombay High Court reported in A I R 1933 Bom. 307 in which Murphy and Broomfield judges laid down the test in these words :‑‑

.One point of importance obviously is whether the crimi nal complaint has been filed before or after the civil suit If it is filed afterwards an intention to prejudice the civil litigation may often be suspected, specially when, as in the present case there has been a long delay'.

In that case their Lordships discussed a ruling given in 6 Cr. L J 131 in which Mirza J had distinguished between public and private prosecutions and then he held that in case of a private complaint the Court should as rule, exer cise its inherent powers. The' learned counsel for the petitioner has referred to a judgment of this Court by Sir Abdul' Qadir. Chief Justice in Karim Bakhsh v. Faiz Ahmad, decided on 8tb February; 1943 in which relying upon 1935 Sind 187, the criminal prosecution was stayed on the ground that the object of criminal proceedings in a private complaint was to prejudice the trial of a civil suit. It is therefore manifest that a criminal proceeding shall not be allowed to continue until the decision of a civil suit provided that it is not a public prosecution and that the same subject‑matter has been brought before a Civil Court earlier than the complaint. In the present case all the tests laid down for the stay of crimi nal proceedings are fulfilled and it is .a fit case for the exer cise of powers under section 561 (A) Criminal Procedure Code'. The proceedings in the complaint under section 498 Pakistan Penal Code shall, therefore, be postponed until the civil suit has been disposed of.

I find that both the connected cases are pending in different Courts and therefore in the interest of convenience and justice to the parties, I transfer the complaint under section 498 Indian Penal Code from the Court of Assistant Commissioner, 1st Class Magistrate to the Court of Senior Sub‑Judge at Bahawalpur who is also Magistrate, 1st class with section 30 powers. Announced.

K.M.A. Petition accepted.

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