2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned Constitution Petition, petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of Constitution of Pakistan, 1973, and prayed to set-aside the impugned order dated 07.09.2015, passed by learned Additional Sessions Judge, (H)/Justice of Peace, Sukkur, whereby criminal misc. application filed by petitioner under sections 22-A and 22-B, Cr.P.C. for lodgment of FIR was declined. Necessary facts spelt out from instant petition are that petitioner has been operating two accounts in H.B.L. Gharibabad, Sukkur, and he presented two cheuqes on 06.08.2015 before the concerned bank but same were dishonoured vide reason No.23 mentioned in cheque return memo issued by the bank. It is further averred that proposed accused namely Abdul Ghani Mangrio, Operation Manager and Muhammad Nadeem Larik, Branch Manager, did not release the amount to petitioner lying in his accounts and petitioner could not encash the amount on lame excuse and mala fide acts of the bank officials, therefore, proposed accused had willfully committed fraud with petitioner. It is further asserted that petitioner disclosed all the facts and circumstances in his misc. application filed before the Justice of Peace but same were not appreciated properly, while dismissing said application, which is contrary to the law.

3. Learned counsel for petitioner contended that Justice of Peace had not properly appreciated the material available on record while passing the impugned order; that SHO concerned could not refuse to lodge FIR and is bound to record statement of petitioner under section 154, Cr.P.C. in his verbatim; that bank has no authority to refuse the cheques issued by the petitioner to encash the amount lying in his own accounts, hence impugned order may be set aside and SHO concerned may be directed to lodge FIR against bank officials.

4. We have heard learned counsel for the petitioner and scanned the material available on record including the impugned order.

5. Perusal of record reflects that petitioner has been operating his two accounts with HBL Gharibabad, Sukkur, bearing No.03050014820901 and 0003057934470203 respectively. Petitioner presented two cheques vide No.1733255 for the sum of Rs.11,50,000/-, and 0817033 for Rs.100,000/- on 06.08.2015, but both cheques were dishonoured by concerned bank as accounts of the petitioner were under hold due to serious irregularity committed in said accounts. It has further transpired that petitioner has malafidely concealed certain material and relevant facts from Justice of Peace as well as this Court regarding fraudulent transfer of amounts in his accounts from the account of his deceased brother. The nephew of the petitioner namely Asif, after death of his father, approached the concerned bank to obtain the statement of account to file succession certificate before the Court and he came to know that after death of his father an amount of Rs.46,00,000/- were transferred in the accounts of petitioner from account of his deceased father. Such facts were brought in the knowledge of the competent authority of HBL and after a proper inquiry Muhammad Iqbal Shaikh, Bank Manager was terminated from his service, and Operation Manager namely Abdul Ghani Mangrio lodged FIR No.27 of 2015 at FIA C.B.C. Karachi, against the petitioner. Thus, accounts of petitioner were seized and cheques issued by him were dishonored by bank under valid reasons.

6. The allegations leveled by the petitioner regarding non enchashment of his cheques by the bank officials did not constitute any cognizable offence, but non-payment of amount was in compliance of seizer of accounts by the competent authority due to commission of alleged fraud by the petitioner by transferring of amount in his own account from the account of deceased brother. It is important to mention that neither bank officials have defrauded the petitioner nor drawn or encashed any amount from his accounts for their personal gain and in absence of the ingredients of fraud, no case has been made out by the petitioner for issuance of directions to the concerned SHO for recording of his statement under section 154, Cr.P.C. It is well settled that Justice of Peace must apply his prudent mind and examine, the entire facts and circumstances of the complaint prudently, while dealing with application for the lodgment of FIR filed by any party that any cognizable offence is made out or otherwise and same should not be decided in mechanical manner.

7. Perusal of impugned order passed by Justice of Peace emanates that he has passed a just and proper order, and petitioner has failed to point out any illegality or material irregularity committed by him while passing the said order, hence same does not call for any interference of this Court and same stands maintained.

8. For the facts and reasons referred supra, instant petition being devoid of any legal substance stands dismissed in limine. These are the detailed reasons for the short order dated 07.10.2015, whereby instant petition was dismissed by us. WA/M-107/Sindh Petition dismissed.