PLJ 2026 Cr.C. (Note) 25
[Lahore High Court, Multan Bench]

Present: Muhammad Jawad Zafar, J.

HUMAIRA KHAKWANI and 2 others--Petitioners

versus

STATE and another--Respondents

Crl. Misc. No. 1796-M of 2024, decided on 11.3.2025.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 249-A--Powers and scope of--The provision of Section 249-A of the Code is designed to prevent unnecessary trials when conviction is unlikely and the evidence available, whether presented or to be presented, is to be scrutinized while deliberating upon the merits of application under this provision to ascertain if there is any possibility of conviction or not. The scope and extent of the powers conferred u/S. 249-A of the Code was deliberated upon by the Honourable Supreme Court of Pakistan--In other words, a full-fledged trial has to be conducted in normal 4 circumstances providing a fair opportunity to the prosecution to provide evidence in support of its case and prosecution is not to be stifled at its inception.          [Para 6] A & B

2005 SCMR 1544; PLD 2024 SC 1152 & 2010 SCMR 1785.

Civil and Family Laws--

----It follows that civil laws, such as family laws, govern the rights, Duties, and obligations individuals, government, and organizations owe to one another, addressing private disputes over these rights. In contrast, criminal law serves as the backbone of the justice system, focusing on crimes and their punishment as a means to preserve society’s values, morality, and norms by checking inappropriate behaviour. [Para 7] C

2024 YLR 1264.

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Arts. 55, 56 & 57--Civil and criminal proceedings--It is trite that a single act can simultaneously trigger both civil and criminal legal action and ‘proceedings for a civil wrong or a public wrong (offence) are independent and not mutually exclusive--Each set of proceedings has its own procedures, standards, and consequences--Even standard of evidence in both, civil/family cases and criminal cases is different--As such, judgments/findings rendered in civil proceedings cannot be treated as absolute in criminal proceedings, except as provided for in Article 55, 56, and 57 of Qanun-e-Shahadat Order 1984 (“QSO”)--The full bench of High Court in “B.N. Kayshap v. Emperor” (AIR 1945 Lahore 23) adjudged admissibility in evidence of judgment/finding of a civil Court in a criminal Court in proof or disproof of fact on which prosecution was based.                                      [Para 7] D

AIR 1945 Lahore 23; 2014 PTD 1807 & 2024 YLR 1264.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 561-A--Inherent powers--Qanun-e-Shahadat Order, 1984 (10 of 1984), Arts. 55, 56, 57 & 58--Findings recorded in judgment passed in appeal in suit for recovery of dower and sustained/upheld by High Court do not have any effect on Proceedings before Judicial Magistrate until judgment will be exhibited and its relevance and admissibility will be adjudged by Trial Court in view of aforementioned judicial precedents, as well as, Articles 55, 56, and 57 of QSO, that too after recording of evidence and determining whether judgment is a relevant fact to criminal charges against petitioners because, prima facie, recovery of dower appears to be distinct and distinguishable from fraud and forgery and after that challenge in terms of Article 58 of QSO can be made to it by prosecution--Even otherwise, due to pendency of proceedings before Honourable Supreme Court, judgement cannot be made basis of acquittal--The findings of for a below are concurrent and no irregularity or illegality in impugned orders could be pointed out which would warrant interference by High Court.                                    

                                                                               [Para 7 & 8] E & F

PLD 1990 SC 686.

Syed Riaz-ul-Hassan Gillani, Advocate for Petitioners.

Mr. Hassan Mehmood Tareen, Deputy Prosecutor General for State.

Mr. Nadeem Ahmed Tarrar, Advocate for Complainant.

Date of hearing: 11.3.2025.

Judgment

Through this Criminal Misc. Petition bearing No. 1796-M of 2024, filed under Section 561-A of the Code of Criminal Procedure 1898 (“Code” or “Cr.P.C”), the petitioners have assailed the vires of Order dated 29.01.2024 passed by learned Judicial Magistrate (“Trial Court”), and Order dated 12.03.2024 passed by the learned Additional Sessions Judge (“Revisional Court”).

2.       The synoptical facts and circumstances, as delineated in the Crime Report, relevant, yet shorn of unnecessary details, giving rise to the filing of this petition, as are, or may be, necessary for the disposal of the same are that Khadim Hussain, son of Respondent No. 2, resides in Saudi Arabia for work related purpose(s). On 30.04.2007, he got married to Petitioner No. 1, Humaira Khakwani, daughter of Petitioner No. 2, Faheem Khan Khakwani. At the time of nikah, dower was settled between the spouses as gold ornaments and one residential house was paid to Petitioner No. 1. Following their marriage, Petitioner No. 1 moved to Saudi Arabia along with her husband, where they lived together for four years. During this time, they were blessed with a son, Saim Khalil, who is currently in the custody of Petitioner No. 1. Sometime after, tension arose when the father of Petitioner No. 1, i.e., Petitioner No. 2, attempted to obtain power of attorney over the property of Khadim Hussain. This led to an altercation between the parties, after which Petitioner No. 2 prevented Petitioner No. 1 from rejoining her husband. Subsequently, Petitioner No. 2 fabricated a false nikahnama in respect of agricultural property of the Khadim Hussain and in said nikahnama, agricultural land of Khadim Hussain measuring 144-Kanal was shown as dower in favour of Petitioner No. 1. According to the FIR, at the time of this fraudulent nikahnama, Khadim Hussain was not even the owner of the 144 Kanal land. Furthermore, the Secretary of Union Council No. 8 has confirmed that the Nikkah Nama is forged, there is no record of its entry in the Union. Council’s official records.

3.       After completion of investigation and all codal formalities, challan/police report under Section 173 of the Code was forwarded to the learned Trial Court on 29.07.2016 and formal charge was framed against the petitioners on 22.06.2017, to which they pleaded not guilty and claimed trial.

4.       During pendency of trial, the petitioners filed their application under Section 249-A of the Code, seeking acquittal therein. Said application was dismissed by the learned Trial Court vide Order dated 29.01.2024. Order dated 29.01.2024 was assailed by invoking revisional jurisdiction of the learned Additional Sessions Judge in terms of Section 435 read with Section 439-A of the Code. The learned Revisional Court upheld the Order dated 29.01.2024 while dismissing revision petition vide Order dated 12.03.2024. Hence this petition.

5.       Arguments heard. Record perused.

6.       The provision of Section 249-A of the Code is designed to prevent unnecessary trials when conviction is unlikely and the evidence available, whether presented or to be presented, is to be scrutinized while deliberating upon the merits of application under this provision to ascertain if there is any possibility of conviction or not.[1] The scope and extent of the powers conferred under Section 249-A of the Code was deliberated upon by the Honourable Supreme Court of Pakistan in “The State v. Raja Abdul Rehman” (2005 SCMR 1544), wherein it was held that:

“This Court in the case of Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298 and Muhammad Sharif v. The State and another PLD 1999 SC 1063 (supra) did not approve decision of criminal cases on an application under Section 249-A, Cr.P.C. or such allied or similar provisions of law, namely, Section 265-K, Cr.P.C. and observed that usually a criminal case should be allowed to be disposed of on merits after recording of the prosecution evidence, statement of the accused under Section 342, Cr.P.C., recording of statement of accused under Section 340(2); Cr.P.C. if so desired by the accused persons and hearing the arguments of the counsel of the parties and that the provisions of Section 249-A, Section 265-K and Section 561-A of the Cr.P.C. should not normally be pressed into action for decision of fate of a criminal cases’.

In other words, a full-fledged trial has to be conducted in normal  circumstances providing a fair opportunity to the prosecution to provide evidence in support of its case and prosecution is not to be stifled at its inception. The Honourable larger bench in “Nawaizish Ali v. The State” (2010 SCMR 1785) observed that:

“The object of exercise of powers is to prevent abuse of law available to the learned appellate Court however in a case where sufficient prima facie evidence is available the powers may not be exercised as to throttle the process of justice. Mere availability of defence to a party does not call for exercise of such powers that call for exercise of judicial discretion. The prosecution evidence is not to be sifted at the outset as laid down in the case of Mst. Kalsoom v. Bashir Ahmed and 2 others (PCr.LJ 2000 SC 1054)”.

Departure can only be made from the aforementioned principle when “extraordinary circumstances” are shown. To bring the case of the petitioners within the confines of the “extraordinary exceptions”, learned counsel for the petitioners averred that the appeal of Petitioner No. 1 in suit for recovery of dower was allowed and decided in favour of Petitioner No. 1 by the learned Appellate Court (Additional District Judge, Multan) vide judgment dated 23.08.2022. Khalil Khadim challenged the judgment dated 23.08.2022 before this Court in Writ Petition bearing No. 14236 of 2022, however, the same was dismissed, as a consequence whereof, the learned Trial Court had no other option but to acquit the petitioners because there was no probability of conviction as judgments of family/civil Courts are binding on criminal Courts. I am afraid, this averment is not helpful to the petitioners because the order passed in Writ Petition bearing No. 14236 of 2022 was appealed before the Honourable Supreme Court of Pakistan in civil petition for leave to appeal bearing No. 2048 of 2024, 2049 of 2024, and 2050 of 2024 titled “Khadim Hussain vs. Humaira Khakwani and others”, wherein the Honourable Supreme Court while granting leave vide Order dated 05.03.2025, issued notices to the present petitioners and stayed execution proceedings.

7.       It follows that civil laws, such as family laws, govern the rights, duties, and obligations individuals, government, and organizations owe to one another, addressing private disputes over these rights. In contrast, criminal law serves as the backbone of the justice system, focusing on crimes and their punishment as a means to preserve society’s values, morality, and norms by checking inappropriate behaviour.[2] English jurist Sir William Blackstone in volume No. 4 of his book, the “Commentaries on the Laws of England” writes that ‘private wrongs are an infringement… of the civil rights which belong to individuals ……… public wrongs, or crimes……… are a breach and violation of the public rights and duties, due to the whole community… in its social aggregate capacity’.[3] It is trite that a single act can simultaneously trigger both civil and criminal legal action and ‘proceedings for a civil wrong or a public wrong (offence) are independent and not mutually exclusive. Each set of proceedings has its own procedures, standards, and consequences.[4] Even the standard of evidence in both, civil/family cases and criminal cases is different. As such, the judgments/findings rendered in civil proceedings cannot be treated as absolute in criminal proceedings, except as provided for in Articles 55, 56, and 57 of the Qanun-e-Shahadat Order, 1984 (“QSO”). The full bench of this Court in “B.N. Kayshap v. Emperor” (AIR 1945 Lahore 23) adjudged the admissibility in evidence of judgment/finding of a civil Court in a criminal Court in proof or disproof of the fact on which prosecution was based. The full bench of this Court held that:

“In other words, the short point to decide is whether the finding on certain facts by a civil Court is relevant before the criminal Court when it is called upon to give a finding on the same facts or vice versa? The Evidence Act being exhaustive, the answer to this question depends upon the correct interpretation of the relevant provisions contained in that Act regardless of the fact whether the conclusion at which one ultimately arrives is in accordance with what was characterized before us during the arguments at the Bar to a commonsense view of things or not. In construing a statute like the Evidence Act, where any fact intended to be established has to be in accordance with the scheme of the Act, found to be relevant under a provision contained in the Act before it can be allowed to be proved, any argument based on plausibility can have no effect. I must therefore ignore any other consideration and confine myself strictly to the provisions of the Act.

Under S. 40 of the Act, previous judgments are admissible in support of a plea of res judicata in civil cases or of autre fois acquit or autre fois convict in criminal cases. Judgments such as those whose relevancy we have been called upon to determine do not fall under this category. Nor can they fall under S.41 of the Act which only makes a final judgment of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, conferring upon, taking away from or declaring any person to be entitled to any legal character or to be entitled to any specific thing absolutely, relevant when the existence of any such legal character or the title to any such thing is relevant. They do not also fall within the purview of S.42 of the Act as they do not relate to matters of a public nature. Section 43 of the Act positively declares judgments other than those mentioned in Ss. 40, 41 and 42 to be irrelevant unless their existence is a fact in issue or is relevant under some other provision of the Act. It is quite clear that the mere existence of a judgment in the present case is not relevant. Learned counsel for the petitioner saw this difficulty and wishes to rely on S.11 of the Act. But I cannot see how could that section have any application when the existence of that judgment as apart from any finding contained therein or even the finding itself could neither be inconsistent with any fact in issue or a relevant fact. Nor could such judgments either by themselves or in connection with other facts make the existence or non-existence of any fact in issue or relevant fact in any subsequent proceedings highly probable or improbable. This section only refers to certain facts which are either themselves inconsistent with, or make the existence or non-existence of, the fact in issue or a relevant fact highly probable or improbable and has no reference to opinions of certain persons in regard to those facts. It does not make such opinions to be relevant and judgments after all of whatever authority are nothing but opinions as to the existence or non-existence of certain facts. These opinions cannot be regarded to be such facts as would fall within the meaning of S. 11 of the Act unless the existence of these opinions is a fact in issue or a relevant fact which is of course a different matter.

As for the Chief Court decision Mr. Justice Rattigan assumed that in all cases of the kind with which he was dealing the proper tribunal to decide was a Civil Court, and that save for very exceptional reasons the decision of the Civil Court should be accepted as conclusive between parties. There is no reason in my Judgment as to why the decision of the Civil Court particularly in an action in personam should be allowed to have that sanctity. There appears to be no sound reason for that view. To hold that when a party has been able to satisfy a Civil Court as to the justice of his claim and has in the result succeeded in obtaining a decree which is final go behind the findings of the Civil Court is to place the latter, without any valid reason, in a much higher position than what it actually occupies in the system of administration in this country and to make it master not only of cases which it is called upon to adjudicate but also of cases which it is not called upon to determine and over which it has really no control. The fact is that the issue in the two cases although based on the same facts (and strictly speaking even the parties in the two proceedings) are not identical and there appears to be no sufficient reason for delaying the proceedings in the Criminal Court, which unhampered by the Civil Court, it is fully competent to decide and which must be in the nature of things decided speedily’.[5]

Similarly, in “Mst. Naseer Begum v. Sain and 6 others” (1972 SCMR 584), the Honourable Supreme Court held that:

‘Learned counsel appearing in support of this petition reiterates the contention that the judgment of the civil Court should have been taken into account, before arriving at a decision in the criminal case. We are unable to agree, because, as pointed out by the Privy Council in the case of Kumar Gopika Raman Roy v. Atal Singh (AIR 1929 PC 99) “the Evidence Act does not make a of fact arrived at on the evidence before the Court in one case evidence of that fact in another case.” Thus, a judgment in a civil Court, as pointed out by M. Murtir in his Law of Evidence, “is not admissible in a criminal proceeding to establish the truth of the facts upon which it is rendered. In a criminal trial it is for the Court to determine the question of the guilt of the accused and it must do so upon the evidence before it”.

In the case of S.N. Gupta & Co. v. Sadananda Ghosh (P L D 1960 Dacca 153), it was held by the Dacca High Court that a judgment of acquittal in a criminal case only decides that the accused has not been proved guilty and to this extent only and no more is it to be taken as correct and conclusive in a subsequent civil suit between the parties.

The position would be the some (sic) with regard to a judgment of a civil Court in a subsequent criminal action. In this view of the matter, we are of the opinion, that the trial Magistrate and the High Court rightly did not take the findings of the civil Court into account in determining the guilt of the accused in the criminal case..’

In view of the above, the findings recorded in the judgment dated 23.08.2022 passed in appeal in suit for recovery of dower and sustained/upheld by this Court do not have any effect on the Proceedings before learned Judicial Magistrate until the judgment will be exhibited and its relevance and admissibility will be adjudged by the learned Trial Court in view of the aforementioned judicial precedents, as well as, Articles 55, 56, and 57 of QSO, that too after recording of the evidence and determining whether the judgment is a relevant fact to the criminal charges against the petitioners[6] because, prima facie, recovery of dower appears to be distinct and distinguishable from fraud and forgery and after that challenge in terms of Article 58 of QSO can be made to it by the prosecution. Even otherwise, due to pendency of proceedings before the Honourable Supreme Court, judgement dated 23.08.2022 cannot be made basis of acquittal.

8.       In the wake of above, the findings of the for a below are concurrent and no irregularity or illegality in the impugned orders could be pointed out which would warrant interference by this Court. Given the preceding discussion, this petition, being bereft of merits, is dismissed.

9.       Before parting with this order, it is observed that challan/police report under Section 173 of the Code was submitted on 30.09.2016 and petitioners were summoned to face trial on 22.06.2016. However, no prosecution evidence or witness could be recorded because on multiple dates of hearing, one or more of the petitioners abstained from attending the trial proceedings. In light of the above, learned trial Court is directed to conclude the trial expeditiously, preferably before summer vacations.

(A.A.K.)          Petition dismissed


[1].       See “Niaz Ahmed and another v. Aijaz Ahmed and others” (PLD 2024 Supreme Court 1152).

[2].       See “Mian Tariq Aziz v. The State” (2024 YLR 1264 Lahore).

[3].       Excerpt taken from “Mian Tariq Aziz v. The State” (2024 YLR 1264 Lahore).

[4].       See “Taj International (Pvt) Ltd. And others v. Federal Board of Revenue and others” (2014 PTD 1807), as quoted in “Mian Tariq Aziz v. The State” (2024 YLR 1264 Lahore).

[5].       The law laid down by the larger bench of the Lahore High Court in “B.N. Kayshap v. Emperor” (AIR 1945 Lahore 23) was cited with approval by the Supreme Court of India in “K.G. Premshanker vs Inspector of Police and Anr” (2002 (8) Supreme Court Cases 87).

[6].       See “Muhammad Shakil v. The State” (PLD 1990 Supreme Court 686), wherein it was held that ‘[t]he Courts are bound to decide each case on the basis of its own record without reference to record of another case and pass conviction on accused in each case on its own record. There is express prohibition in the Evidence Act and even on accepted general principles, decision in every proceedings in a given case is to be made on its own record. Conflicting decisions given in separate trials shall not be allowed to be used against each other. In Civil Law decision would be only binding upon the parties to the suit and it shall become relevant in another suit only if they fall under Sections 40 to 44 of the Evidence Act unless, of course, where the judgments contain an exposition of law, custom or usage having the force of law in which the Court shall take judicial notice of the judgment so far as they state what the law is and they need not be proved. It does not follow that all statements of facts contained in the judgment become matters of which the Court will take, judicial notice’. [emphasis supplied].