2017 PLP 1548 (YLR)

Through this Intra Court Appeal in terms of Section 3 of the Law Reforms Ordinance, 1972, Malik Sohail Aslam appellant has assailed the legality of order dated 16.9.2015 passed by the learned Single Judge-in-Chambers; whereby Writ Petition No.14986 of 2014 filed by respondent No.4 was allowed.

2. Succinctly the facts leading to this Intra-Court-appeal are that the appellant lodged an application under sections 22-A and 22-B of Cr.P.C. before the learned Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore seeking registration of case against respondent No.4. The learned Additional Sessions Judge/Ex-Officio Justice of the Peace, Lahore while entertaining the petition under Sections 22-A and 22-B of Cr.P.C. requisitioned the comments of SHO concerned for 8.5.2014. On the said date learned Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore disposed of the said petition in the following manner:-- "

3. The contention of the petitioner is that the proposed accused issued two cheques in his favour which was subsequently dishonoured by the concerned Bank on presentation copies of the same attached with instant petition. The documentary evidence in the form of copy of dishonour cheque and its slip is available with the file. Prima facie cognizable offence is made out. In these circumstances, I while exercising powers vested in my under Sections 22-A and 22-B, Cr.P.C. directed the petitioner to approach the SHO concerned and produce before him the original dishonour cheque and slip whereas SHO concerned is directed to record the statement of the petitioner while satisfying the mandatory requirement of Section 154, Cr.P.C. and due action under the law would follow.

4. In view of direction given above, this petition stands disposed of."

3. Respondent No.4 being aggrieved challenged the vires of above said order through Writ Petition No.14986/2014 which was allowed by the learned Single Judge-in-Chambers vide impugned order dated 16.9.2015 in the following manners:-- "

3. After hearing the learned counsel for the parties and perusing the record, it is noticed that the petitioner and Dr. Farhan established a medical center under the name and style of "The Mall Medical Center" and respondent No.2 had invested the amount on monthly profit basis. This fact is evident from "Mutual Investment Deed" executed between the parties. According to the petitioner the respondent had also invested Rs.700,000/- in the business of the petitioner and in lieu of that amount cheque valuing Rs.700,000/- was issued in favour of the respondent as guarantee, which he got returned from the respondent after payment of that amount. The respondent has not stated about cheque of Rs.700,000/- in his application, therefore, the stance taken by the petitioner seems to be plausible. Learned Ex-Officio Justice of Peace while issuing the direction against the petitioner did not appreciate the afore-noted facts thus the impugned order requires interference of this Court."

4. We have heard the arguments advanced by the learned counsel for the parties as well as learned Law Officer and have perused the record minutely.

5. With reference to the arguments advanced by the learned counsel for the appellant, it is pertinent to mention that the Superior Courts in Pakistan have traveled a long way in developing and interpreting the law of procedure viz-a-viz role and functions of the Ex-Officio Justice of Peace in respect of the complaints regarding failure of the police to register a case. Needless to mention that in terms of section 22-A(6), Cr.P.C. the learned Ex-Officio Justice of Peace may issue appropriate directions to Police Authorities concerned on a complaint regarding non-registration of criminal case. There is no cavil to the proposition that the word "may" used in the above noted provision confers discretionary power upon Ex-Officio Justice of the Peace in this regard. No doubt learned Ex-Officio Justice of the Peace is obliged to exercise powers vested in him under the law in a judicious manner with application of mind taking into consideration the facts and material of the case. Bare perusal of application constitutes commission of cognizable offence, but the concerned SHO has not registered a case which constrained the appellant to file a petition under sections 22-A and 22-B, Cr.P.C. before the learned Ex-Officio Justice of the Peace, who has issued a direction for registration of case against respondent No.4.

6. Moreover, perusal of the application which has been made to the SHO concerned with respect to the dishonour of the cheques is sufficient to constitute an offence under Section 489-F, P.P.C. as the liability or obligation has accrued against the cheques. There is no cavil to this proposition that if the liability is accrued and the cheques have been issued for the fulfillment of an obligation, then the case should have been registered.

7. Besides above, the FIR is a pertinent document in the criminal law procedure and its main object is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and to bring to book the guilty.

8. In the attending circumstances, the learned Ex-Office Justice of Peace has rightly abided the celebrated judgment of Hon'ble Supreme Court of Pakistan delivered in case titled "Muhammad Bashir v. Station House Officer, Okara Cantt. and others" (PLD 2007 Supreme Court 539) wherein, the following ratio has been decided:-- "No authority vested with an Officer Incharge of a Police Station or with anyone else to hold any inquiry into the correctness or otherwise of the information which was conveyed to the S.H.O. for the purposes of recording of an FIR Any FIR registered after such an exercise i.e. determination of the truth or falsity of the information conveyed to the S.H.O., would get hit by the provisions of section 162, Cr.P.C. Existence of an FIR was no condition precedent for holding of an investigation nor was the same a prerequisite for the arrest of a person concerned with the commission of a cognizable offence; nor does the recording of an FIR mean that the S.H.O. or a police officer deputed by him was obliged to investigate the case or to go through the whole length of investigation of the case mentioned therein or that any accused person nominated therein must be arrested."

9. We are unanimous in our view that admittedly the cheques were dishonoured and dishonoured slips are attached with the record but this material aspect perhaps escaped notice of the learned Single Judge-in-Chambers. Guidance in this respect can also be sought from "Younas Abbas and others v. Additional Sessions Judge, Chakwal and others" (PLD 2016 Supreme Court 581).

10. For the reasons recorded herein above, this appeal is allowed, the order dated 16.9.2015 passed by the learned Single Judge-in-Chambers is set-aside and the order dated 8.5.2014 passed by the learned Ex-Officio Justice of Peace is up-held. JK/S-15/L Appeal allowed.