Advocate No Sign

•وکیل کے ساتھ سائل کے دستخط https://youtu.be/JKZlVd7C6rg?si=hJyewGYa5bHZo2mK 

Replication CPC | Written Statement | Plaint | CIVIL CASE | Rejoinder ...

Interim Order | InterLocutory Order | Appeal | Revision | civil Suit | J...

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Absconder | Proclaimed Offender | Fugitive from Law | Criminal Procedure...

Execution of dower

       https://youtu.be/QUbhAibQMIg

اگر فیملی کورٹ عورت کا دعوٰی تنسیخ نکاح بربنائے خلع بشرط واپسی حق مہر ڈگری کرتی ہے تو شوہر اسی ڈگری کی بنیاد پر حق مہر کی واپسی کیلئے اجرا دائر کرسکتا ہے

2023 C L C 1285

Return/recovery of dower---Execution petition---Maintainability---Scope---Suit for dissolution of marriage on the basis of Khula was decreed subject to return of dower---Four tolas of gold ornaments was fixed as dower duly entered in Column of Nikah Nama---Executing Court turned down the objection of respondent/ex-wife that execution petition for recovery of Zar-e-Khulla was not maintainable---Appellate Court accepted the version/objection of respondent by allowing her revision petition---Held, that the decision of dissolution of marriage in terms of S.10(4) of the Family Courts Act, 1964, was compound, which on the one hand dissolved the marriage inter se parties and, on the other, said dissolution was made subject to return of dower---Manner and form of decree was prescribed in Rr. 16 and 17 of the Family Courts Rules, 1965, in light of which dissolution of marriage, on the basis of Khula subject to return of dower was a decree for all intent and purposes under S.13 of the Family Courts Act, 1964, and thus was executable---

JUDGMENT---This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 stems out from judgment dated 22nd September, 2016, whereby the learned Additional District Judge, Rawalpindi, while allowing the revision petition filed by respondent No.3 (hereinafter referred to as "respondent") set aside the order dated 6th February, 2016 passed by the learned Judge Family Court/ Executing Court, Rawalpindi.

2.    Facts in brief necessary for adjudication of instant petition are that the petitioner was married to the "respondent". On account of differences, a suit for dissolution of marriage on the basis of Khula was instituted by the "respondent", which was decreed by way of judgment dated 8th December, 2010, subject to return of dower. The petitioner moved an execution petition seeking return of dower. The execution petition was though objected by the "respondent", however, by way of order dated 6th February, 2016, the objection was turned down and the "respondent" was directed to hand over 4-tola gold in shape of ornaments or its price at the prevailing market rate. Feeling dissatisfied, the "respondent" filed a revision petition before the learned Additional District Judge, Rawalpindi, which was accepted through impugned judgment on the ground that execution petition was not competent, in the circumstances.

3.    After having heard learned counsel for the parties at considerable length, I have perused the record.

4.    After having remained in marital tie for some time with the petitioner, the "respondent" in order to part her ways, instituted a suit for dissolution of marriage on the basis of Khula before the learned Judge Family Court, Rawalpindi. On failure of pre-trial reconciliation proceedings, suit was finally decreed by way of order dated 8th December, 2010 with the following observations: -  

  "3. Considering pre-trial reconciliation proceedings to be failed under proviso of Section 10(4) of Family Courts Act 1964, suit of the plaintiff for dissolution of marriage is hereby decreed on the basis of Khullah, subject to return of dower…"

(Underlining supplied for emphasis)

5.    This followed an execution petition on behalf of petitioner for the return of 4-tola of gold as part of dower. The "respondent" resisted the execution proceedings and by way of order dated 22nd November, 2011, she was directed to return the four tolas gold ornaments mentioned in Nikahnama or its price mentioned in the receipt at the time of Nikah. Feeling dissatisfied, the petitioner preferred revision petition before the learned Additional District Judge, Rawalpindi, which was allowed by way of judgment dated 2nd April, 2012. The "respondent" then filed W.P.No.3002 of 2012, which was accepted with the consent of the parties by way of order dated 15th May, 2015 in the following manner:-

 "With the consensus of the parties, this petition is accepted and set aside the orders dated 25.11.2011 and 02.04.2012 passed by the learned trial Court, with a direction to the learned Executing Court to decide the application of the respondent afresh keeping in view the law laid down by the Hon'ble Supreme Court of Pakistan in titled "Mst. Ayesha Shaheen v. Khalid Mehmood and another" (2013 SCMR 1049).

6.    In post remand proceedings, the learned Judge Family Court/ Executing Court, by way of order dated 6th February, 2016, directed the "respondent" to hand over 4-tola gold in shape of ornaments or its price at the prevailing market value while discarding her objections. This prompted the "respondent" to file the revision petition before the learned Additional District Judge, Rawalpindi, which was allowed through impugned judgment.

7.    It appears from the impugned judgment that the revision petition was accepted on the sole ground that for the recovery of "Zar-e-Khula" in a suit for dissolution of marriage, execution petition was not maintainable. Reliance to this effect was placed on Mst. Nadia Bibi v. Additional District Judge and others (PLD 2013 Lahore 41). From the perusal of the judgment in the case of (Mst. Nadia Bibi) supra; it clearly reveals that in the said matter suit for dissolution of marriage was decreed and marriage was dissolved on the basis of Khula without any condition. In this backdrop, it was held that as there was no decree in favour of respondent No.2 in the petition, so execution proceedings are not maintainable.

8.    The facts in the present case on the contrary are altogether different. In this case, the learned Judge Family Court, while dissolving the marriage on the basis of Khula, directed the "respondent" to return the dower. As per column No.17 of Nikahnama, dower was in the shape of 4-tola gold ornaments, which is even not in dispute. Learned counsel for the "respondent" though submitted that a suit for recovery was instituted by the petitioner to this effect, which was dismissed but from the perusal of record it reveals that suit for recovery was related to some other gold ornaments, having no nexus with the gold ornaments subject matter of the present controversy.

9.    The term "decree" is nowhere defined in the Family Courts Act, 1964. So for this purpose, recourse can be made to section 2(2) of the Code of Civil Procedure (V of 1908), which defines the decree as under:-

  "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint the determination of any question within section 144 and an order under rules 60, 98, 99, 101 or 103 of Order XXI but shall not include ---

   (a) any adjudication from which an appeal lies as an appeal from an order; or

(b) any order of dismissal for default.

After having a glimpse of the definition of decree, no doubt left that a decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint the determination of any question within section 144 and an order under Rules 60, 98, 99, 101 or 103 of Order XXI but shall not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default. Suit for dissolution of marriage was decreed in terms of section 10 (4) of the Family Courts Act, 1964. The decision was compound, which on the one hand dissolved the marriage interse parties and on the other dissolution was made subject to return of dower.10.  Section 13 of the Family Courts Act, 1964 provides the manner of enforcement of decrees, which reads as under: -

   13. Enforcement of decrees.- (1) The Family Court shall pass a decree in such form and in such manner as may be prescribed, and shall enter its particulars in the prescribed register.

    (2) If any money is paid or any property is delivered in the presence of the Family Court, in satisfaction of the decree, it shall enter the fact of payment [or] the delivery of property, as the case may be, in the aforesaid register.

   (3) Where a decree relates to the payment of money and the decretal amount is not paid within time specified by the Court [not exceeding thirty days], the same shall, if the Court so directs be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.

  (4) The decree shall be executed by the Court, passing it or by such other Civil Court as the District Judge may, by special or general order, direct. 

   (5) A Family Court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such installments as it deems fit.

11.  The manner and form of decree is provided in the West Pakistan Family Court Rules, 1965. Rules 16 and 17, for the said purpose, are more relevant, which are reproduced below:-

  16. In every suit, on passing the judgment, a decree shall be drawn up in Form I and shall be signed by the presiding Judge. The decree shall bear the seal of the Court.

 17. The Court shall maintain a register of decrees and orders in the form prescribed for decrees and orders under the Code of Civil Procedure, 1908.

12.  The above discussion thus leads to irresistible conclusion that the order dated 8th December, 2010 resulting into dissolution of marriage on the basis of Khula subject to return of dower, for all intent and purposes, was a decree under section 13 of the "Act, 1964" and was executable.

13.  The crux of above discussion is that the learned Additional District Judge has erred in law while allowing the revision petition. Resultantly, this petition is allowed. Impugned judgment dated 22nd September, 2016 is set aside being illegal and unlawful.

Procedure S. 476 Cr.Pc

                   

https://youtu.be/4kCjrWc8dnM?si=qth-iFcy8ha8jy8g

               

                      2025 LHC33

   CRIMINAL APPEAL No.40068/2020 

Asif Atta   vs.  The State, etc. 

Date of hearing  15.01.2025 

Ref. “S.M. REHMATULLAH versus THE STATE” (PLD 1986 Karachi 560) 

* 195. (1) No Court shall take cognizance: (a)  Prosecution for contempt of lawful authority of public servants: Of any offence punishable under Sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;  

(b)    Prosecution for certain offences against public justice: Of any offence punishable under arty of the following sections of the same Code, namely Sections 193, 194, 195, 196. 199. 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except, on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or 

(c)     Prosecution for certain offences relating to documents given in evidence: Of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding,

  •√ Except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate. 

•√ Procedure for trial of offences mentioned in section 195, sub-section (1), clause (b) or clause (c) is regulated under section 476 of Cr.P.C. relevant part is reproduced; 

476. Procedure in cases mentioned in Section 195: When any offence referred to in Section 195, sub-section (1), clause(b) or clause (c), has been committed in or in relation to a proceeding in any Civil, Revenue or Criminal Court, 

* The Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials in Chapter XXII.   

•√This section directs summary trial under chapter XXII of Cr.P.C; Other court. 

----------------

480. Procedure in certain cases of contempt:

 (1) When any such offence as is described in Section 175, Section 178, Section 179, Section 180 or Section 228 of the Pakistan Penal Code is committed in the view or presence of any Civil Criminal or Revenue Court, the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day may, if it thinks fit, take cognizance of the offence and sentence the offender to fine not exceeding two hundred rupees; and, in default of payment to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid. 

•√ But when such offences are committed before himself or 

√ in contempt of his lawful authority, or 

•√ is brought under his notice, as such Judge or Magistrate (except Judge of High Court) in the course of a judicial proceeding,

°√  He shall not try it himself. This command of law is incorporated in section 487 of Cr.P.C. which is as under; 

487. Certain Judges and Magistrates not to try offences referred to in Section 195 when committed before themselves: (1) Except as provided in Sections 476, 480 and 485 no Judge of a Criminal Court or Magistrate, other than a Judge of a High Court, shall try any person for any offence referred to in Section 195, when such offence is committed before himself or in contempt of his authority, or is brought under his notice, as such Judge or Magistrate in the course of a judicial proceeding. 

*+ In the present case learned Additional Sessions Judge has sentenced the appellant under section 174 of PPC for his failure to produce the accused against whom notice was issued on petition for cancellation of his bail. Section 174 falls in category of offences mentioned in section 195, sub-section (1), clause (a), therefore, learned Additional Sessions Judge was not authorized to sentence the appellant by himself, rather complaint should have been forwarded to the Magistrate having jurisdiction in the matter,

Supplementary Statement

 

     https://youtu.be/ulgcYQ6aFjQ?si=eW7

               2024LHC2299

 Case No. Crl.Misc.No.27821-H/24

  Mst. Najma Bibi Vs        S.H.O., etc.  

                  13.05.2024 

       Remand paper shows that it was not forwarded by the concerned, Prosecutor but amazingly the learned Magistrate not only entertained the request of the Investigating Officer, without the same being forwarded by the Prosecutor but also send the alleged detenue to the judicial lock up in a mechanical manner without applying its judicial mind as to whether sufficient material was available  against the alleged detenue to curtail her liberty or not.  

* liberty and dignity of a person have always remained sacrosanct and have been placed atop the fundamental/ human rights pedestal. Islam has conferred upon human being the highest level of dignity amongst all of Allah’s creation and secured and protected for them complete liberty within the prescribed limits. 

 Kh. Salman Rafiq.PLD 2020 SC 456

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Article (9)(1) of the International Convenant on Civil and Political rights. 3 AIR 2011 SC 312 

Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. This is why “liberty” is called the very quintessence of a civilized existence…3 

alleged detenue was not named in the crime report of the aforementioned criminal case. She was involved in the case subsequently on the so-called disclosure of the coaccused before the police. According to Article 38 of the Qanun-e-Shahadat Order, 1984, admission of an accused before police cannot be used as evidence against the co-accused.

Even otherwise, it is well settled by now that confession of an accused before the police is inadmissible in evidence as far as admission of his own involvement in the alleged offence concerned, 

in order to justify the arrest/detention of the alleged detenue is supplementary statement got recorded by him almost twenty days of the alleged occurrence but he did not disclose his source qua involvement of the alleged detenue in the alleged occurrence. 

Raja Muhammad Younis .Vs. The State (2013 SCMR 669). 6 Alam Zeb .V. The State and others (PLD 2014 SC 760) 

It is well settled by now that any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it.[1] 

  Falak Sher .vs. The State (1995 SCMR 1350) 

The Apex Court in a plethora of judgments observed that supplementary statement recorded subsequently to the FIR can be viewed as improvement.[1] 

1993 SCMR 550,1998 SCMR 685,2011 SCMR 379, 2011 SCMR 161 & 2003 SCMR 426 

police officials abducted the alleged detenue by trespassing into her house at mid-night without any search warrants, confined her for a number of days and then created false and frivolous evidence against her in order to justify their act requires serious attention. 

  •√ Directions are issued to all the concerned for strict compliance in the future:- 

(i)         Liberty of a person is a fundamental right enshrined in the Constitution and no one can be allowed to curtail the same on the basis of malafide and colourful exercise of authority.  

(ii)      Supplementary statement recorded by the complainant for involving a particular accused in an incident, without disclosing the source of information, is not per se admissible piece of evidence, as such while recording such statement, the Investigation Officer should insist upon the complainant to disclose his source of information.  (iii)  Investigating Officer should not cause arrest of the accused straightaway upon the supplementary statement of the complainant, rather he is duty bound to first collect incriminating piece of evidence in support of such statement and then proceed in accordance with law.  

(iv)     The request of the Investigating Officer for physical/judicial remand of such accused, must have been accompanied with the opinion of the concerned Prosecutor qua sufficiency of the material against him. 

(v)       Any request sans of the opinion of the concerned Prosecutor shall not be entertained by the Area Magistrate or the Court as the case may be.  

(vi)     The Area Magistrate or the Court, as the case may be, shall not grant physical/judicial remand in a mechanical manner, rather record its reasons for according such request.  

(vii)   If the supplementary statement of the complainant is bereft of source of information for involvement of an accused, the Area Magistrate or the Court as the case may be, may require the presence of the complainant before dealing with such request.  

13. Copy of this order shall be circulated amongst all the concerned for compliance through Registrar of this Court.  

Disposed off.        (Asjad Javaid Ghural) 

                                    Judge 

 Approved for Reporting  

             Judge 

 Azam*               

 

Second Bail Petition

             

            Second Bail Petition

                PLD 2021 SC 892

Maintainability of the second pre-arrest bail petition after withdrawal of the first pre-arrest bail petition without satisfactory explanation for withdrawing the earlier pre-arrest bail petition.Filing a pre-arrest bail petition, enjoying the concession of ad interim bail granted therein and then simply withdrawing the petition in order to file another one after sometime and availing the same benefit of ad interim bail once again, in the absence of any lawful explanation or justification, is a sheer abuse of the process of the court. While  the  accused  can  approach  the  same  court  with  a  fresh  pre-arrest bail  petition  if  the  earlier  one  has  been  withdrawn  without  advancing arguments  on  merits,  the  court  must  be  watchful  that  the  successive petition  is  not  readily  entertained  or  the  concession  of  ad  interim  bail   granted  to  the  accused,  unless  he  furnishes  satisfactory  explanation  for withdrawal  of  the  first  petition  and  filing of  the  second  one;  otherwise,  an unscrupulous  accused  can  abuse  the  process  of  court  for  ulterior purposes.  Therefore,  the  accused  must  be  required  by  the  court  to furnish  satisfactory  explanation  for  withdrawing  the  first  pre-arrest  bail petition  at  the  time  of  entertaining  the  second  pre-arrest  bail  petition. Unless  there  is  satisfactory  explanation,  the  second  bail  petition  should not  be  entertained,  because  otherwise  the  accused  would  have  an unchecked  license  to  abuse  the  concession  of  ad  interim  pre-arrest  bail by  misusing  the  court-process,  and  hoodwink  the  Police  to  prolong  the investigation.  Therefore,  while  the  accused  has  access  to  courts  to  seek pre-arrest  bail,  even  successively  for  justifiable  reasons,  he  cannot  be permitted  to  abuse  the  concession  of  ad  interim  bail  to  stall  the investigation  and  play  hide  and  seek  with  the  criminal  justice  system.  In case  the  accused  fails  to  give  satisfactory  explanation  for  his  withdrawal of  the  earlier  pre-arrest  bail  petition  and  the  need  for  filing  the  fresh  one, his  second  or  successive  pre-arrest  bail  petition  shall  not  be maintainable.   Bail Before Arrest.

Stay of Civil Case.

PLJ 2023 SC 481

       [Appellate Jurisdiction]

Present: Syed Mansoor Ali Shah and Syed Hasan Azhar Rizvi, JJ.

   SALMAN ASHRAF--Petitioner

                     versus

DDITIONAL DISTRICT JUDGE, LAHORE, etc.--Respondents

C.P. No. 2000-L of 2020, decided on 26.5.2023.

(Against the order of the Lahore High Court, Lahore, dated 08.12.2020, passed by in Writ Petition No. 64232 of 2020)

Civil Procedure Code, 1908 (V of 1908)--

        -S. 9 & O. VII, R. 11--National Accountability Ordinance 1999, S. 13--Civil & criminal proceedings--Dismissing application of petitioner for rejection of plaint in a suit--All three courts below have decided matter against petitioner--Meanwhile, National Accountability Bureau (“NAB”) also took cognizance of alleged commission of offence by respondent--Accountability Court convicted respondent--The question of limitation could not be decided without recording evidence, and that scope of jurisdiction of a civil court and that of a criminal court in regard to documents in question was different--Finding of a criminal court on a fact constituting offence tried by that court is irrelevant in a civil proceeding to decide same fact in course of adjudicating upon and enforcing civil rights and obligations--Section 13 of NAB Ordinance has no application to matter involved in suit filed by respondent--The question of any express or implied bar on jurisdiction of civil court to try a matter was neither raised nor decided therein--The courts in Pakistan, as held, cannot import an implied bar from another country’s jurisprudence--The petitioner will still have chance of success in his claim in civil proceeding if civil court finds that preponderance of probability tilts in his favour--Appeal dismissed.                                [Pp. 483, 484, 485, 486, 487 & 488] A, B, C, D, G, I, J, K, M

PLD 1985 SC 134; 1995 SCMR 500; 1980 PCrLJ 1172; 2004 MLD 491; PLD 1990 SC 28; 1991 SCMR 2126 ref.

     Administration of justice

..Civil proceeding and criminal proceeding--Both civil proceeding and criminal proceeding relating to one and same matter can be instituted and ordinarily proceeded with simultaneously.    

       [Pp. 484 & 485] E

2003 SCMR 1691; 2006 SCMR 512; 2006 SCMR 1192; 2008 SCMR 839; 2021 SCMR 1486 ref.

Administration of justice

-Civil proceeding and criminal proceeding--Where criminal liability is dependent upon or intimately connected with result of civil proceeding and it is difficult to draw a line between a bona fide claim and criminal act alleged, trial in criminal proceeding may be postponed till conclusion of civil proceeding.   [P. 485] F

PLD 1968 SC 281; PLD 1984 SC 95 ref. 2017 SCMR 390,1972 SCMR 85.

Civil Procedure Code, 1908 (V of 1908)---

--S. 9--Jurisdiction--Section 9, CPC, provides that civil courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.[P. 486] H

1969 PCr.LJ 411; 2010 SCMR 1816; 2017 SCMR 390; 1972 SCMR 85; PLD 1968 SC 281; PLD 1984 SC 95 ref.

     Administration of justice---

--Standard of proof--Civil and criminal proceedings--A mere preponderance of probability is sufficient to decide disputed fact but in latter, guilt of accused must be proved beyond any reasonable doubt.     [P. 487] L1

          991 SCMR 2126 ref.

Mr. Hafeez Saeed Akhtar, ASC for Petitioner.

Ch. Zulfiqar Ali, ASC. (via video link from Lahore and Syed Rifaqat Hussain Shah, AOR for Respondent No. 3.

Dates of hearing: 25 and 26.5.2023.

Order

Syed Mansoor Ali Shah, J.--The petitioner seeks leave to appeal against an order of the Lahore High Court, dated 08.12.2020, whereby the High Court has dismissed his writ petition and upheld the order of the revisional Court, dated 20.11.2020. By its order, the revisional Court had dismissed the revision petition of the petitioner filed against the order of the trial Court, dated 27.10.2020, dismissing the application of the petitioner for rejection of the plaint in a suit filed by Respondent No. 3, Ch. Muhammad Ashiq, (“respondent”). All three Courts below have thus decided the matter against the petitioner.

2. Briefly, the factual background of the case is that on 2 June 2007, the petitioner filed a suit for recovery of the amount of

Rs. 174,406,250/- against the respondent. In his suit, the petitioner asserted that he and his late father paid the said amount to the respondent, vide agreements dated 06.08.2003, 26.05.2004 and 13.07.2004 and certain receipts, to purchase for them some land and plots in different phases of DHA, Lahore; but the respondent did not fulfil the commitment nor did he return the said amount. Meanwhile, the National Accountability Bureau (“NAB”) also took cognizance of the alleged commission of the offence by the respondent, of defrauding the members of the public and inducing them to deliver him a huge amount of money on the pretext of procuring plots for them in DHA, Lahore. The affectees of the alleged offence included the petitioner; therefore, in the trial of that offence the petitioner appeared as a witness and also tendered the said agreements and receipts allegedly executed by the respondent, in the prosecution evidence. While relying on the prosecution evidence, which included the testimony of the respondent as well as the said agreements and receipts, the Accountability Court convicted the respondent vide its judgment dated 27.11.2012. The respondent preferred an appeal against the judgment of the Accountability Court before the Lahore High Court, which is pending adjudication.

3. In addition to that appeal, the respondent also instituted a suit for declaration on 7 June 2013 against the petitioner, wherein he asserted that the agreements and receipts on the basis of which the petitioner had instituted the suit for recovery of the amount against him are forged, fabricated and fictitious. In the suit, he prayed that the said agreements and receipts may be declared to be so and thus ineffective against his rights. The trial Court consolidated the proceedings of the suit of the respondent with the suit of the petitioner and framed consolidated issues. The respondent produced his evidence on the consolidated issues, and the hearing of the case was fixed for evidence of the petitioner when he filed on 2 September 2020 an application under Rule 11 of Order 7 of the Code of Civil Procedure 1908 (“CPC”), for rejection of the plaint in the suit of the respondent.

4. The application of the petitioner for rejection of the plaint was mainly based upon two grounds: (i) the suit of the respondent is time-barred, and (ii) the suit is not maintainable in view of the judgment of the Accountability Court, wherein the agreements and receipts have been relied upon for convicting the respondent. The trial Court dismissed the application on 27 October 2020 by holding that in the circumstances of the case, the question of limitation could not be decided without recording evidence, and that the scope of the jurisdiction of a civil Court and that of a criminal Court in regard to the documents in question (agreements and receipts) was different. The revision petition filed by the petitioner was dismissed by the District Court on 20 November 2020. And by the impugned judgment passed on 8 December 2020 in the writ petition of the petitioner, the High Court upheld the orders of the Courts below. The High Court observed that in the present case, the question of limitation was a mixed one of law and facts, which was not to be decided summarily but rather after recording evidence of the parties, and that the civil and criminal proceedings regarding the veracity of the documents could be conducted simultaneously.

5. Before us, the learned counsel for the petitioner pressed only the second ground and contended that once a matter (validity of the agreements and receipts) is decided by a criminal Court, the same cannot be re-agitated in a suit before a civil Court. Such a suit, he contended, is barred by law. In support of his contention, he placed reliance on three judgments: Olas Khan v. Chairman NAB (PLD 2018 SC 40), Zahida Sattar v. Federation of Pakistan (PLD 2002 SC 408), and Hunter v. Chief Constable of West Midlands ([1981] 3 All ER 727).

6. On the other hand, the learned counsel for the respondent submitted that civil proceedings are distinct from criminal proceedings and can be conducted simultaneously, and that civil Courts have plenary jurisdiction to decide upon all matters of civil nature unless it is shown that their jurisdiction is either expressly or impliedly barred. He relied upon Jan Muhammad v. Nazir Ahmad (2004 SCMR 612), Province of Punjab v. Yaqoob Khan (2007 SCMR 554), Nazir Khan v. Ahmad (2008 SCMR 539), Hashmat Ullah v. State (2019 SCMR 1730) and SNGPL v. Noor CNG Filling Station (2022 SCMR 1501).

7. We have considered the arguments of the learned counsel for the parties, read the cases cited by them and examined the record of the case.

8. It hardly needs reiteration that the object of a civil proceeding is to enforce civil rights and obligations while that of a criminal proceeding is to punish the offender for the commission of an offence. It is, therefore, a well-established legal position in our jurisdiction that both the civil proceeding and criminal proceeding relating to one and the same matter can be instituted and ordinarily proceeded with simultaneously.[1] Although there is no bar to the simultaneous institution of both proceedings, the trial in the criminal proceeding may be stopped in certain circumstances.[2] And the guiding principle in this regard is also well-defined. It is that where the criminal liability is dependent upon or intimately connected with the result of the civil proceeding and it is difficult to draw a line between a bona fide claim and the criminal act alleged, the trial in the criminal proceeding may be postponed till the conclusion of the civil proceeding.[3] Thus, where either of these two conditions is not fulfilled, i.e., where the subject matter of civil proceeding and that of criminal proceeding are distinct, not intimately connected,[4] or where the civil proceeding is instituted mala fide to delay the criminal prosecution, not bona fide,[5] the criminal proceeding may not be stayed.

9. It is notable that the whole jurisprudence on the subject, as briefly stated above, has developed while dealing with the question of staying criminal proceeding till the conclusion of the connected civil proceeding. Not a single case is brought to our notice wherein the question of staying civil proceeding till the culmination of the criminal proceeding had been raised. The reason is not far to see.

* The decision of a civil Court as to any right, title or status, which only that Court can finally decide, may have a substantial bearing upon a constituent ingredient of the offence being tried by the criminal Court.[6] On the other hand, any finding of a criminal Court on a fact constituting the offence tried by that Court is irrelevant in a civil proceeding to decide the same fact in the course of adjudicating upon and enforcing civil rights and obligations.[7] The petitioner has even gone a step farther than that. As he has not prayed that the civil proceeding may be stayed till a final decision in the criminal proceeding but rather for quashing the civil proceeding by rejecting the plaint therein, on the basis of some findings of facts recorded in the criminal proceeding by the criminal trial Court.

10. Section 9, CPC, provides that the civil Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. And as per clause (d) of Rule 11 of Order 7, CPC, a plaint can be rejected where the suit appears to be barred by any law. Thus, to succeed in his plea for rejection of the plaint in the suit of the respondent, the petitioner is to show under which law the suit of the respondent is either expressly or implied barred. The petitioner has pointed out no such law.

11. The reliance of the petitioner on the case of Zahida Sattar is misconceived. In that case, this Court upheld the order of the civil Court rejecting the plaint by observing that Section 13 of the National Accountability Ordinance 1999 (“NAB Ordinance”) conferred exclusive jurisdiction on the Accountability Court to adjudicate upon the matter that was agitated in the civil suit and the jurisdiction of the civil Court to try that matter was impliedly barred. Section 13 of the NAB Ordinance has no application to the matter involved in the suit filed by the respondent.

12. Similarly, the reliance of the petitioner on the case of Olas Khan is misplaced. In that case, the Court was dealing with the question on the jurisdiction of the High Court to grant bail to an accused arrested for an offence under the NAB Ordinance. The question of any express or implied bar on the jurisdiction of the civil Court to try a matter was neither raised nor decided therein. Nothing turns out of a passing remark made in that case, and referred to by the learned counsel for the petitioner, that the NAB Ordinance is a special statute hybrid in nature and is a fusion of criminal liability and civil obligations. The learned counsel for the petitioner did not pinpoint any provision of the NAB Ordinance, which confers exclusive jurisdiction on the Accountability Court to enforce civil obligations. He only referred to Section 33-E of the NAB Ordinance, which provides that any fine or other sum due under the Ordinance, or as determined to be due by a Court, shall be recoverable as arrears of land revenue. Similar provisions are contained in Section 544-A(2) of the Code of Criminal Procedure 1898 (“Cr.P.C.”) for recovery of the compensation awarded under subsection (1) of that Section. It has never been urged that a criminal Court enforces civil obligations by taking proceedings to recover the amount of compensation as an arear of land revenue under Section 544-A. Rather, Section 546, Cr.P.C. envisages the institution of a civil suit relating to the same matter, despite the recovery of the compensation under Section 544-A.

13. The third case relied upon by the learned counsel for the petitioner is that of Hunter decided by the U.K. House of Lords. In Hunter, the House of Lords essentially held that a civil action by a person to prove that the confession on the basis of which he was convicted in the criminal trial had been procured by force, in the disguise of a claim for damages, is an abuse of the process of the Court and such a civil action is liable to be struck out. The learned counsel for the petitioner, by taking an analogy from that case, argued that as a piece of evidence (confessional statement) found valid and relied upon in the criminal proceeding was not allowed to be challenged in a civil action in Hunter, the evidence of the agreements and receipts found valid and relied upon by the Accountability Court in the present case cannot be challenged in a civil suit by the respondent. We find the analogy to be in correct. While certain agreements and receipts, such as those involved in the present case, may give rise to civil rights and obligations, a confessional statement made in a criminal case does not. Therefore, the suit that challenges the validity of such agreements and receipts is a suit of a civil nature within the meaning and scope of Section 9, CPC, but the suit challenging the validity of such a confessional statement is not. Further, the bar on the jurisdiction of the civil Court to try a suit of civil nature or on the maintainability of a suit envisaged by Section 9 or clause (d) of Rule 11 of Order 7, CPC is that which is created either expressly or impliedly by some statutory law enacted by the legislature. The Courts in Pakistan, as held by this Court in Akram v. Farman Bi,[8] cannot import an implied bar from another country’s jurisprudence.

14. Needless to mention that the standard of proof required in civil and criminal proceedings is different. In the former, a mere preponderance of probability is sufficient to decide the disputed fact but in the latter, the guilt of the accused must be proved beyond any reasonable doubt.[9] There are, therefore, chances of giving divergent judgments by the civil and criminal Courts on the facts that give rise to both civil and criminal liabilities.[10] The contention made in the present case by the petitioner appears surprising to us in that it has the potential of causing detriment to his claim. The judgment of the Accountability Court on which the petitioner is now relying is under judicial scrutiny of the first appellate Court, i.e., the High Court, and any judgment passed by the High Court may further be challenged in this Court. What if the High Court or this Court comes to a conclusion contrary to that of the trial Court and acquits the respondent of the charge giving him the benefit of any reasonable doubt? Would the claim of the petitioner against the respondent for recovery of the amount come to an end? Not, in our view. The petitioner will still have the chance of success in his claim in the civil proceeding if the civil Court finds that the preponderance of probability tilts in his favour.

15. For the above reasons, we find no legal error in the concurrent orders of the three Courts below. This petition is found meritless. It is therefore dismissed and the leave to appeal is declined.

(K.Q.B.)          Petition dismissed

[1].       Aslam Zaheer v. Shah Muhammad 2003 SCMR 1691; Rafique Bibi v. Muhammad Sharif 2006 SCMR 512; Khalid Saleem v. Muhammad Ashraf 2006 SCMR 1192; Seema Fareed v. State 2008 SCMR 839; Sikandar Ali v. SHO 2021 SCMR 1486.

[2].       Muhammad Akbar v. State PLD 1968 SC 281 (4-MB); Manak Ji v. Fakhar Iqbal 1969 PCrLJ 411 SC (4-MB); Muhammad Tufail v. State 1979 SCMR 437; Abdul Haleem v. State 1982 SCMR 988; Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353; Muhammad Anwar v. Badshah Begum 1999 SCMR 1475; Sheraz Ahmad v. Fayyaz-ud- Din 2005 SCMR 1599; Abdul Ahad v. Amjad Ali PLD 2006 SC 771; Zafar v. Umar Hayat 2010 SCMR 1816.

[3].       Muhammad Akbar v. State PLD 1968 SC 281 (4-MB); Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 (5- MB).

[4].       Muhammad Aslam v. State 2017 SCMR 390.

[5].       Mohammad Ahmad v. State 1972 SCMR 85.

[6].       Muhammad Akbar v. State PLD 1968 SC 281 (4-MB); Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 (5- MB).

[7].       D.I.G., Lahore v. Anis-ur-Rehman Khan P L D 1985 SC 134 (4-MB); Ghulam Rasool v. Muhammad Waris 1995 SCMR 500; Richard Benjamin v. Ismail 1980 PCrLJ 1172 Kar (DB); Aijaz v. Karachi Transport Corporation 2004 MLD 491.

[8].       PLD 1990 SC 28.

[9].       Zakaullah Khan v. Muhammad Aslam 1991 SCMR 2126.

[10].      Richard Benjamin v. Ismail 1980 PCrLJ 1172 Kar (DB); Aijaz v. Karachi Transport Corporation 2004 MLD 491.