2014 PLP 1616 (YLR)

MAHMOOD AHMAD BHATTI, J.

Bashir Ahmad has filed this petition to question the validity of the order dated 23-11-2013 passed by learned Additional Sessions Judge/Ex-Officio Justice of Peace, Muzaffargarh, whereby he ordered the SHO, Police Station Roheelanwali, District Muzaffargarh to record the statement of the complainant, Ghulam Hussain and to proceed in accordance with law. Needless to add, the aforesaid order was passed on an application moved by Ghulam Hussain, respondent No.3, under section 22-A Cr.P.C.

2. On 28-11-2013, notice was issued to the respondents Nos.2 and 3, while operation of the impugned order dated 23-11-2013 was suspended. Today Messer Tahir Mehmood and Malik Bakhat Yar Mehdi Advocates entered appearance on behalf of Ghulam Hussain, the complainant and prayed for the dismissal of the petition.

3. In support of the petition, learned counsel for the petitioner contends that order of the registration of the case against the petitioner was totally arbitrary, illegal, unlawful, without lawful authority and of no legal effect. He argues that the petitioner had made some business transactions with Ghulam Hussain, complainant and in order to settle the accounts had delivered him a Cheque No.5057892 dated 22-7-2013 amounting to Rs.5,65,000, drawn on Bank Al-Habib Limited, Roheelanwali Branch, Muzaffargarh. However, the amount in question was paid back to the complainant, and nothing was due from the petitioner. This matter was also referred to an Arbitrator, Abdul Rehman Advocate who is stated to have given his verdict that the petitioner had already liquidated the debt. At the same time, learned counsel for the petitioner submits that the petitioner has filed a suit for injunction, seeking to restrain the complainant from recovering the amount in question, and this suit is pending adjudication before the competent court of law. Last but not the least, Ex-Officio Justice of Peace, Muzaffargarh committed an illegality by not following the report submitted by S.H.O. concerned, who had appraised the Court vide report dated 8-10-2013 that the matter had already been settled between the parties, and there was no need to proceed against the petitioner under section 489-F, P.P.C.

4. Learned counsel for the complainant has vehemently opposed this petition, maintaining that the order dated 23-11-2013 passed by learned Additional Sessions Judge/Ex-Officio Justice of Peace, Muzaffargarh was lawfully passed, who was not bound to endorse the report submitted to him by the S.H.O. concerned. Even otherwise, Ex-Officio Justice of Peace was not required to ask for such a report before passing any order on an application under section 22-A, Cr.P.C. It was also argued that the petitioner is approbating and reprobating. He has not denied that he had made out the cheque in question and issued the same to the complainant, but he was taking a false plea that he had returned the amount in question to the complainant.

5. Arguments heard. Record perused.

6. It is not without significance that it was not denied at all by the petitioner that he had made out Cheque No. 5057892 dated 22-7-2013 amounting to Rs.5,65,000 drawn on Bank Al-Habib Limited. Nor did he disown his thumb-prints/thumb impressions on the cheque handed over to the complainant/respondent No.3. As far his contention that he had already paid back the entire amount, and nothing is due from him, this controversy could not be resolved by the learned Ex-Officio Justice of Peace, while exercising his powers under section 22-A, Cr.P.C. Needless to say, this inquiry is to be undertaken subsequent to the registration of the F.I.R. and is not to be conducted before passing any order under section 22-A, Cr.P.C. This was so held by the august Supreme Court of Pakistan in the case reported as 'Muhammad Bashir v. Station House Officer, Okara Cantt. and 7 others' (PLD 2007 Supreme Court 539). Even if, respondent No.1 had called for such a report, he was not to sign on the dotted lines and to approve it off, without applying himself to the case placed before him.

7. As far contention of learned counsel for the petitioner that the matter had already been settled between the parties, as is reflected in the report of a purported Arbitrator, it would not be advisable to deal with any remarks pass or observation made by this Court on this issue would be tantamount to prejudicing the case of the complainant or prejudicing the case of the either parties on merits. As stated above, this exercise is to be carried out in the wake of the registration of the case and is not to be preceded.

8. The upshot of the above discussion is that this petition is devoid of merits, and is hereby dismissed. MH/B-4/L Petition dismissed.