2004 P Cr (PLP)

Ahmad Shahzad.Farooq for Petitioner Nadeem Mahmood Mian for the Complainant Muhammad Sohail Dar, A.A.-G. The petitioner seeks quashment of F.I.R. No. 110 of 2003, dated 11-7-2003 registered under section 489/17, P.P.C. with Police Station Mochi Gate, Lahore on the complaint of one Nisar Ahmad respondent No. 1 (herein) alleging therein that he (respondent No. 1) has to receive Rs.9,00,000 from the petitioner.` The petitioner had issued him four cheques of. M.C.B. Shah Alain Branch, Lahore, the detail of which is mentioned in paragraph No.4, of the writ petition and delivered the same to him. Thereafter, when respondent No. 1 presented the same in the bank, they were dishonoured because of no cash in the account of the petitioner.

2. Learned counsel for the petitioner argued that the cheques mentioned in the F.I.R. were issued and dishonoured much before the enforcement of Amended Ordinance in P.P.C., dated 25-10-2002 and from the contents of 'the F. I. R. the offence under section 489-F, P.P.C.

3. On the other hand, learned counsel appearing on behalf of complainant as well as State when confronted with this legal aspect of the case could not respond. They argued that offence of cheating by the petitioner has been committed and the case is covered under-sections 420, 468 and 471, P.P.C. They relied upon cases of Ch. Pervaiz Elahi v. Federation of Pakistan and others 1995 MLD 615; Mirza Ishtiaq Hussain v. Syed Abdul Qadir 1970 Law Notes 757 and Abdul Karim-Butt v. Abdul Qayyum 1972 PCr.LJ 1182.

4. I have heard both sides and perused the record.

5. The amended section 489-F, P.P.C. reads as under for ready reference:

Dishonestly issuing a cheque.

Whoever dishonestly issues a cheque towards repayment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or .with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque." (This amendment had been inserted in P.P.C. by Ordinance LXXXV of 2002; dated 25-10-2002). It is settled proposition of law that any act or statute promulgated by the Legislature shall be effective immediately from the date of enforcement and it has no retrospective effect unless provided in the law. In this context reference can be made to the cases of Province of East Pakistan v. Sharafatullah PLD 1970 SC 514 and the Chief Land Commissioner Sindh v. Ghulam Haider Shah 1988 SCMR 715.

6. The cheques mentioned in the F.I.R. were issued on 16-2-2001, 25-2-2001, 16-3-2001 and 25-3-2001 respectively and these were presented in the bank for encashment but returned with the remarks that there was no amount in the account of the petitioner and thus, were dishonoured on 4-5-2001 and 16-5-2001. At the time of issuing of cheques and declaring them dishonoured the offence under section 489-F, B P.P.C. as not provided in P.P.C. The Amended Ordinance, whereby, the said offence has been added in the law was issued and enforced much after the alleged occurrence, hence, the case is not covered within the ambit of provision of section 489-17, P.P.C. No other offence has been added in the F.I.R.

7. For the foregoing reasons, I am convinced that said offence against the petitioner is not made out, so, this writ petition is accepted and the said F.I.R. is declared to have been lodged illegally and of no legal effect, hence, quashed. H.B.T./A-1002/L F.I.R. quashed: