1986 P Cr.

L J 2174

[Lahore]

Before Rustam S. Sidhwa, J

Mst. SHABAB AKHTAR----Petitioner

Versus

ZAHID HUSSAIN—Respondent

Criminal Miscellaneous No. 223/Q of 1985 decided or 14th December 1985.

Criminal Procedure Code (V of 1898)—

---S. 561-A--Penal Code (XLV of 1860), Ss.494 & 495--Stay of criminal proceedings--
Complainant alleging in his complaint that he had been deceived by accused into marrying her
on her representation that she was not married--During pendency of criminal proceedings
complainant filing a suit for jactitation of marriage, against accused and accused filing a suit for
declaration against complainant that she was his legally-wedded wife--Common issue which
arose both in criminal and civil proceedings was whether accused was validly divorced from her
previous husband--As civil Court was proper forum for determination of civil rights between
parties, held, it was necessary to stay criminal proceedings till final disposal of cross-suits which
were pending between parties--Criminal proceedings stayed in circumstances.

Muhammad Ahmad v. State 1972 S C M R 85: Ghulam Muhammad v. Muzammal Khan P L D

1967 S C 317 and Rehmatullah v. Abdul Aziz 1974 P Cr. L J 541 ref.

Malik Muhammad Rashid Awan for Petitioner.

Ashiq Hussain Malik for Respondent.

ORDER

This is a quashment petition filed by Mst. Shabab Akhtar, petitioner, which has been admitted by
this Court to consider the question whether the criminal case filed by Zahid Hussain, respondent,
against her under section 494/495, P. P. C. should not be stayed, till the final disposal of civil
litigation between the parties.

2. It is alleged that Mst. Shabab Akhtar, petitioner, married Zahid Hussain, respondent. on 14-3-
1982 and that in the Nikahnama Rs.5,00,000 was fixed as dower to be paid by the respondent
which he did not pay. In order to avoid his liability. it is stated that the respondent on 27-7-1982,
filed a false criminal complaint against the petitioner under section 494/495, P.P.C. alleging that
he had been deceived by the petitioner into marrying her on her representation that she was not
married, which criminal proceedings are still pending. On 31-5-1983 the respondent filed a suit
for jactitation of marriage against the petitioner, which was dismissed on 8-1-1985 on the ground
of want of jurisdiction, whereupon the respondent filed a second suit for the same relief on 27-1-
1985, which suit is still pending. On 12-9-1985, the petitioner filed a suit for declaration against
the respondent that she was his legally-wedded wife, which suit is also pending. Through the
present quashment petition, the petitioner desires that the criminal proceedings pending against
her be stayed, till the disposal of the civil litigation between the parties.

3. On behalf of the petitioner it is submitted that the questions in dispute in the criminal litigation
are the same which arise in the two suits for jactitation of marriage and declaration, which are
pending between the parties in the civil Court, and since the civil Court is the more competent
Court to decide a matter regarding the status of the parties, the criminal proceedings should be
stayed, pending the final decision of the cross-suits between the parties.

4. On behalf of the respondent. it is submitted that the questions in dispute in the criminal
proceeding is not the same as that in the two cross-suits. In this connection the learned counsel
has relied upon Muhammad Ahmad v. State 1972 S C M R 85. It is further submitted that
criminal proceedings should not ordinarily be stayed merely because civil litigation is pending
Page No. 1 of 2
between the parties. In this connection Ghulam Muhammad v. Muhammad Khan P L D 1967 S C
317 and Rehmatullah v. Abdul Aziz 1974 P Cr. L J 541 have been referred.

5. I have heard the arguments of the learned counsel for the petitioner and the respondent.
Through the suit for jactitation of marriage, the respondent desires to shut the mouth of the
petitioner from claiming to be his lawfully-wedded wife. Through the suit for declaration, the
petitioner desires to assert that the respondent is her lawfully-wedded husband. It is obvious that
in the suit for jactitation of marriage, the petitioner will claim and prove that she was previously
married to one Muhammad Anwar, that she did secure a valid divorce from him and that these
facts were communicated to the respondent when she married him. One of the issues arising,
obviously, will be whether the petitioner was validly divorced from her previous husband,
Muhammad Nawaz. The same issue obviously is one which, arises in the criminal complaint
case. Since the civil Court in the proper forum for the determination of civil rights between the
parties, it is necessary that the criminal proceedings be stayed, till the final disposal of the cross-
suits which are pending between the parties.

6. For the foregoing reasons this petition is accepted and the criminal proceedings pending
against the petitioner under section 494/495, Cr.P.C. in the Court of the Judicial Magistrate at
Faisalabad are hereby stayed, pending the final disposal of the civil litigation between the parties.

H.A.K. Criminal proceedings stayed.

Page No. 2 of 2
Page No. 3 of 2