2012 PLP 1288 (YLR)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.

Through the instant constitutional petition, the petitioner has assailed the legality of order dated 7-2-2012 passed by the learned Additional Sessions Judge/Ex-Officio Justice of Peace, Jhang whereby the application filed under sections 22-A and 22-B, Cr.P.C. seeking direction to the Station House Officer, Police Station Kotwali, District Jhang for registration of the case against the delinquents was declined.

2. The petitioner filed an application to the Station House Officer with the assertion that Muhammad Ishaq had borrowed Rs.11,00,000 from the petitioner which he paid by getting en cashed his two cheques and a cheque of Rs.1,00,000 was also handed over to him. The said Muhammad Ishaq on the demand of the petitioner for return of the amount agreed to sell his land in lieu of the amount but subsequently, he refused. In this connection for return of the amount, a civil suit was filed in the Civil Court. It is further alleged in the application that to resolve the controversy between the parties, a Punchayat was also constituted in which both the parties i.e. the petitioner and Muhammad Ishaq handed over blank cheques to the arbitrator. Later on, the arbitrator did not resolve the matter between the parties. The matter of handing over the cheques as security was recorded in the register of petition writer. According to the petitioner, the respondent Muhammad Ishaq violated the terms of entry made in the register and refused to return the amount rather lodged a counter claim of Rs.15,00,000 against the petitioner. With these allegations, the petitioner prayed for the registration of case against Muhammad Ishaq and others.

3. The learned Additional Sessions Judge/Ex-Officio Justice of Peace after examining the record and securing the report from the S.H.O. of the police station concerned observing that the petitioner was facing a case regarding dishonouring of the cheque, declined the request of the petitioner.

4. It is contended by the learned counsel for the petitioner that the Station House Officer of said police station was bound to record the statement of the petitioner under section 154 of the Cr.P.C. and then to investigate the same but before that, he submitted the report in the court mentioning that an F.I.R. was registered against the present petitioner. He further argued that the learned Justice of Peace has committed illegality in not issuing the direction to the S.H.O. for recording the statement of the petitioner. In this connection, learned counsel has cited the cases of Muhammad Bashir v. The State (PLD 2007 SC 539) and Khalid Mehmood v. S.H.O. Police Station Jaranwala, District Faisalabad (2011 YLR 2284).

5. There is no cavil to the proposition that Station House Officer of a police station is bound to perform his duties in accordance with law and when any matter regarding commission of cognizable offence is reported to him, he has to register the F.I.R. in terms of section 154, Cr.P.C. Before doing this exercise, the condition precedent is that commission of a cognizable offence should be reported or in other words the statement made by informant should be in respect of a cognizable offence. In the instant case, it is noticed that when the petitioner filed application to the Station House Officers, the same does not disclose any commission of cognizable offence. Admittedly, the petitioner had delivered the cheque as security to the arbitrator appointed by both the parties with their free-will and the said cheque was not issued for any consideration either by the petitioner or the respondent. In this manner, it cannot be said that the cheque in question was issued by the opposite party for consideration or with this dishonest intention. This submission of the petitioner that according to the record of the petition writer, the cheque was issued by the petitioner to the arbitrator which allegedly was handed over by them to the prospective accused and on the basis of that cheque, an F.I.R. had lodged against the present petitioner under section 489-F, Cr.P.C. can be agitated by the petitioner before the forum where the matter is pending. The contents of the petition further discloses that the dispute between the parties is in respect of return of money and the cheque allegedly issued as a security, for the recovery of which amount as well as the cheque, criminal machinery cannot be set into motion. In the case-law cited by the petitioner, it is so held by the apex court that the Station House Officer of the Police Station is bound to register the case if commission of cognizable offence is made out from the application or the statement of the informant. This condition is lacking in the application filed by the petitioner before the Station House Officer.

6. In view of this position, it can be said that the order passed by the learned Additional Sessions Judge/Ex-Officio Justice of Peace does not suffer from any legal infirmity as observed by the apex court in the case of Rai Ashraf and others v. Muhammad Saleem Bhatti and others (PLD 2010 SC 691) that the petitioner has the alternate remedy of instituting a criminal complaint if so advised.

7. For the foregoing reason, the petition in hand having no merit is dismissed. M.W.A./M-65/L Petition dismissed.