1980 PLP 311 (SCMR)

Ch. Muhammad Hussain, Advocate Supreme Court (absent) with Ch. Iftikhar Ali, Advocate‑on‑Record for Petitioner (in both Petitions). Nemo for Respondents (in both Petitions) Date of hearing : 6th October, 1979. ANWARUL HAQ, C J.‑This order will dispose of Criminal Petitions for Leave to Appeal bearing Nos. 66‑R and 67‑R of 1979, which proceed on identical facts. The petitioner is facing prosecution in the Court of Assistant Commis sioner, Bannu, on charges falling under sections 419 and 420 of the Pakistan Penal Code on the allegations that he had purchased timber from two timber merchants, namely, Muhammad Hayat Khan and Haji Latifullah Khan of Bannu. He paid part of the purchase price in cash and issued post‑dated cheques for the remaining amount in each case. It is alleged by the complainants that these cheques were dishonoured at the instance of the petitioner. The petitioner applied for quashment of the proceedings under section 561‑A of the Criminal Procedure Code, but his petitions were dismissed by a learned Judge of the Peshawar High Court by his order dated the 27th of May, 1979. He now seeks leave to appeal in both these cases. The main ground urged in support of these petitions by Mr. Akhtar Ali is that, in fact, the petitioner had never visited Bannu and had never entered into any transactions with the two respondents in these cases ; and that he had issued the cheques in question in favour of one Bakht Ali of Gujranwala who seems to have mysteriously and dishonestly passed on these cheques to the respondents. The learned counsel contends that during the proceedings in the High Court an offer was made to the respondents to take a special oath as to the veracity of their allegations, but they declined to do so. Finally, Mr. Akhtar Ali submits that, in any case, the dispute between the parties is of a civil nature and the criminal complaints initiated by the respondents amount to an abuse of the process of the Court. We find that the submissions made by the learned counsel in support of these petitions raise disputed questions of fact, which can only be decided after recording evidence. The issuance of the cheques is apparently not controverted by the petitioner, although he contends that the cheques were given to one Bakht Ali who had mysteriously passed them on to the respon dents. These mysterious circumstances would obviously require investiga tion by the trial Court. The circumstances in which the cheques came to be dishonoured also need to be ascertained for the purpose of determining whether there was any criminal intention on the part of the petitioner or whether the dispute between the parties is, indeed, primarily of a civil nature. In the circumstances, the learned Judge in the High Court seems to us to be right in refusing to quash the proceedings. He rightly declined to go into these disputed questions of fact which can only be determined by the appropriate Court. Both the petitions, therefore, fail and are hereby dismissed. Petitions dismissed.