2016 PLP 144 (YLRN)

SHAHID HAMEED DAR, J.

This constitutional petition is directed against order dated 15.4.2014 passed by the learned Additional Sessions Judge, Gujranwala, whereby an order passed by the learned Judicial Magistrate, Gujranwala/trial court on 20.2.2014 qua dismissal of application of Tariq Hameed Khokhar (respondent No.1) for summoning Muhammad Asim (petitioner) as an accused, was set aside and respondent's revision petition was allowed.

2. Precisely, the facts relating to this case are that the petitioner is accused of case FIR No.29/2010, dated 14.1.2010 for offences under sections 420, 468, 471, P.P.C., registered at Police Station Civil Line, Gujranwala, which had been lodged at the instance of Tariq Hameed Khokhar (respondent No.1) with the contention that he dealt in poultry feed and set-up his office at Azam Plaza, Bukhari Road Gujranwala; Muhammad Shahid, who occasionally purchased feed from him, visited his office on 16.12.2008 and after rendition of accounts, he issued a cheque of Rs.30,11,200/- to him, the same day, by telling that it had been drawn on his personal bank account and it would be encashable on 29.7.2009; two days before the due date, Muhammad Shahid requested him not to present the said cheque for encashment as he would clear his dues through cash and receive the cheque-in-issue back; Muhammad Shahid did not keep the word and lingered on the matter for one reason or the other; lastly, he (respondent No.1) deposited the said cheque for encashment in his own account but it was bounced by the bank with the objection that the drawer's account stood closed since 2008. Muhammad Shahid accused was indicted by the learned trial court on 22.3.2010 and the prosecution was directed to produce evidence against him. It was at this stage, when respondent No.1 moved an application for summoning Muhammad Asim (petitioner herein) as an accused, which was dismissed by the learned trial court on 20.2.2014. The complainant (respondent No.1) filed a revision petition against the said order, which was allowed by the learned Additional Sessions Judge, Gujranwala on 15.4.2014. Hence, the instant petition.

3. I have heard the learned counsel for the parties and perused the record. It has straightaway been found that the impugned order passed by the learned Additional Sessions Judge, Gujranwala does not make any sense as it is not based on any plausible or cogent reason. Learned judicial magistrate/trial court rightly rejected the application of the complainant (respondent No.1) for summoning of Muhammad Asim (petitioner herein) as an accused of the above- said case, as no such incriminating circumstance existed on the record, which could establish a nexus between the latter and the accusations contained in the FIR. The complainant (respondent No.1) did not adopt the contention during investigation, nor his witnesses did so, if Muhammad Asim ever accepted the liability of paying the amount in question to the complainant on behalf of his brother, who was a nominated accused of the FIR-case. It transpired from the record that the complainant produced two witnesses, Dr.Shahzad and Iftikhar Alam before the investigating officer on 23.1.2010, who contended that the cheque in issue had been signed by Muhammad Shahid accused in their presence, before he passed it on to the complainant (respondent No.1). The observation of the revisional court that the clarity of the allegation against the petitioner could only be ascertained after recording evidence of the prosecution witnesses, is like finding a black cat in the intense darkness. The memo of objection, as issued by the bank, revealed that the relevant account stood closed since 2008, hence, there was no probability for encashment of the said cheque.

4. The complainant has categorically alleged in the FIR that he sold the feed to Muhammad Shahid for quite some time and it was he who owed an amount of Rs.30,11,200/- to him/seller and not the petitioner. The liability to pay cost of the purchased item exclusively rested on the shoulders of Muhammad Shahid/vendee. The disputed cheque was allegedly received by the complainant from Muhammad Shahid on 16.12.2008, which was signed by him in presence of the witnesses while sitting in former's office. It cannot be imagined, even though wildly, that Muhammad Asim (petitioner) was connected with the story of FIR in any manner, hence, his summoning as an accused of the said case was unjustified. The order of the learned trial court looks sustainable by all means, but not that of learned revisional court.

5. For the foregoing reasons, this petition is accepted and the impugned order passed by the learned revisional court is set aside. The parties are left to bear own costs. YN/M-201/L Petition accepted.