2014 P Cr (PLP)

SAYED MUHAMMAD KAZIM RAZA SHAMSI, J.

The appellant had sold a Toyota Corolla Car to the respondent Muhammad Yousaf who in return had issued five cheques valuing Rs.650,000 in favour of the appellant which were dishonoured subsequently and the respondent did not pay the price of the car to the complainant. The cheques were issued by the respondent on 8-10-2001 and 18-4-2002 upon which F.I.R. No.117 dated 30-5-2004 was registered under section 489-F, P.P.C. with Police Station Rail Bazar District Faisalabad. The report under section 173, Cr.P.C. submitted in the court was entertained and the respondent filed an application under section 249-A, Cr.P.C. seeking his acquittal from the charge on the ground that at the time of issuance of cheques in dispute, the provisions of section 489-F, P.P.C. were not promulgated, thus he cannot be charged for the offence which was no offence at the time of its commission.

2. The learned trial Court after accepting the application of the respondent acquitted him from the charge on the same ground holding that the law was promulgated w.e.f. 25-10-2002 while the cheques in dispute were issued much prior to insertion of the offence in the Pakistan Penal Code, 1860. The appellant has prayed for the reversal of the judgment of acquittal through the instant appeal.

3. The learned counsel for the appellant has been heard who has relied upon the judgment of apex Court delivered in case reported as "Haji Sardar Khalid Saleem v. Muhammad Ashraf and others" (2006 SCMR 1192) by asserting that if the offence under section 489-F, P.P.C. was not inserted in the Code ibid at the time of issuance of the cheques, even then the court was bound to charge the respondent under sections 420, 468 and 471, P.P.C.

4. I have examined the judgment upon which the learned counsel for the appellant has placed reliance and it is found that in the reported case, the matter was quashing of the F.I.R. and the same did not relate to the decision of any criminal appeal. The facts of that case are altogether different than the facts of the instant case in which the appellant by making statement under section 154, Cr.P.C. has categorically alleged dishonestly issuance of the cheques by the respondent at the time when section 489-F, P.P.C. had not been inserted in the penal law. It is the admitted position on the record that at the time of issuance of the disputed cheques, the law did not exist for taking cognizance in respect of the issuance of negotiable instrument drawn dishonestly and to avoid the liability, but it existed at the time of availing the remedy before the court that is why F.I.R. was registered under section 489-F, P.P.C. on 30-5-2004 much after the promulgation of the said provisions of law. It is settled principle of law that a lis shall be dealt with in accordance with the law available at the time of accrual of a right to sue in favour of a person and this principle has been envisaged in case of "Colonial Sugar Mills" reported as 1905 Appeal Cases 369, subsequently, followed in chain of cases. Although the right to sue in favour of the appellant had existed on the date of issuance of the cheques but he did not set into motion criminal machinery at that time, thus a valuable right has accrued in favour of respondent, of which he cannot be deprived due to indolence of appellant. The learned trial Court keeping in view these facts that section 489-F, P.P.C. has no retrospective effect and is prospective in nature has not committed any illegality nor the order passed under section 249-A, Cr.P.C. can be treated as perverse or against the canons of law, as such, the same is liable to be maintained.

5. For the foregoing reasons, the appeal in hand bereft of merits, is dismissed summarily under section 421, Cr.P.C. MH/M-191/L Appeal dismissed.