2012 PLP 360 (YLR)

NISAR MUHAMMAD SHAIKH, J.

The applicant Aijaz Ali Noonari seeks registration of his F.I.R. against the proposed accused namely Dr. Shah Muhammad Noonari. The similar prayer made by the applicant in his application under section 22-A&B, Cr.P.C. was declined vide order dated 5-9-2011 passed by learned VIIth Additional Sessions Judge Hyderabad/Ex-Officio Justice of Peace. I have heard learned counsel for the applicant, proposed accused and learned A.P.-G. Sindh for the State and also perused relevant record. The respondent No.1 has also filed his statement in writing. For the sake of convenience, the impugned order dated 5-9-2011 is reproduced below:-- "By this order I would like to dispose of an application under sections 22-A and 22-B, Cr.P.C. moved on behalf of applicant above named complaining for non-registering of F.I.R. by the concerned S.H.O. The S.H.O. Hussainabad submitted his report stating therein that applicant neither appeared before police station nor requested for recording the F.I.R. He further submitted that if the applicant is approached the police station, his grievance will be resolved according to law. Heard and gone through the contents of application as well as material available in hand. It reveals that the Cheque bearing No.4404668 of 10-4-2011 of bank M.C. situated at Napa Karachi branch was issued by proposed accused Dr. Shah Muhammad to the applicant filed the present application for lodging the F.I.R. On the other hand material available before me, it shows that proposed accused Dr. Shah Muhammad filed a Civil Suit No.916 of 2011 in the court of learned IXth Senior Civil Judge, Karachi East against the applicant wherein the applicant shows as defendant No.1 Vide Order dated 15-8-2011 passed by said learned court has been restrained the applicant and other defendants in the said Civil Suit, subjected Cheque at bank; regarding causing harassment to the plaintiff (proposed accused) or to register the criminal case at the instance of defendant No.1 (applicant). Therefore, in view of above circumstances, at this stage, the application under sections 22-A and B, Cr.P.C. is not maintainable and become infructuous, hence same is dismissed." According to learned counsel for the applicant, the S.H.O. concerned is legally bound to record the statement of the applicant and register his F.I.R. against nominated accused if cognizable offence is made out. On the other hand, contention of learned counsel for proposed accused is that there is factual controversy between the parties in respect of the cheque in question which was allegedly bounced and such a civil suit has also been filed by the proposed accused in the competent civil court of Karachi which has also issued restraining order therefore, present application deserves no consideration which has been filed in order to drag the proposed accused in a false criminal litigation. He further submits that even otherwise, the cheque in question was issued at Karachi and the bank in which the proposed accused has his account, is situated at Karachi where the proposed accused also resides, therefore, the jurisdiction in the matter lies with the police of Karachi and not of the Hyderabad. Whereas, learned A.P.-G. appearing for the State, submits that the applicant has option to register the F.I.R. at either of the places where the cheque was issued or the same was dishonoured and it is an admitted position that the cheque was presented at a bank at Hyderabad and the same was dishonoured on the ground of insufficient funds. Learned counsel for the applicant in support of his contentions, also relied upon the case reported as PLD 2007 SC 539 which provides that no authority is vested with an officer in charge of a police station, to refuse to record the F.I.R. where the information discloses the commission of a cognizable offence. He also relied upon the case reported as PLD 2005 Karachi 621 which also provides that no notice is required to be given to anybody for forming opinion and the Ex-Officio Justice of Peace has to form an opinion about the offence being cognizable or from the facts narrated to him by the complainant. Learned counsel for the proposed accused also referred the order dated 15-8-2011 passed by IXth Senior Civil Judge Karachi East showing that there is a restraining order and therefore the applicant cannot get his F.I.R. registered in violation of such restraining order. The perusal of such order dated 15-8-2011 shows that though the prayer of the plaintiff/proposed accused was to restrain the defendant/applicant from causing any harassment or from registering the criminal case but the restraining order of the civil court was to the extent and in the terms that "all the parties are directed not to do any illegal act till next date of hearing." In this regard, the learned counsel for the applicant referred to section 56(e) of the Specific Relief Act which provides that an injunction cannot be granted to stay proceedings in any criminal matter. He also placed his reliance on the case reported as 2002 MLD 1379 which provides that no universal principle exists that proceedings in criminal case must be stayed when similar or identical matter is pending before the civil court. In this connection, he also relied upon the case reported as 2000 MLD 1687 which also provides that where two independent remedies (civil as well as criminal) are available to a person involved in a case, he could avail both of them simultaneously. In addition to above, learned counsel for the applicant also placed reliance on the case reported as PLD 2010 Lahore 60 showing that the applicant has option to get his F.I.R. registered at either of the places where the cheque was issued or the same was bounced. I have considered the above submissions. There is no cavil in the proposition, rather legal position, that the applicant cannot be prevented or deprived of from approaching the S.H.O. concerned for recording his statement in respect of the offence which is alleged by him to have been committed by the accused. The defence plea as taken by the learned counsel for the proposed accused, however, cannot be taken into consideration at this stage though a civil suit is also pending in this regard before the civil court. Moreover, the law as relied upon by learned counsel for the applicant, provides that both remedies if available, can simultaneously be availed by the aggrieved person before the civil court as well as criminal court. Since the applicant is levelling an allegation which, according to him, constitutes a criminal liability, therefore, he is allowed to approach the S.H.O. of concerned police station, who shall record the statement of the applicant in verbatim and if a cognizable offence is made out from such statement, then the F.I.R. of the applicant shall be registered. In case such F.I.R. is registered, then no arrest shall be effected unless a tangible evidence is collected by the investigation agency against the nominated accused. Moreover, the police officer concerned may also take action against the applicant in accordance with law in case his F.I.R., if registered, is found false during investigation. The present application stands allowed in the above terms. H.B.T./A-160/K Order accordingly.