2009 PLP 1167 (MLD)

KHAWAJA MUHAMMAD SHARIF, C.J.

Learned counsel of the petitioner in support of this petition submits that the petitioner was arrested in case F.I.R. No. 266 of 2005, dated 4-4-2005 registered in Police Station Gulberg, Lahore under section 489-F, P.P.C. on the report of Mahmood A Sheikh respondent; that petitioner was discharged in this case; that the respondent in that case challenged second investigation of the police and second investigation was set aside by this Court; that after the order passed by this Court respondent went to learned Magistrate who passed the impugned order and summoned the petitioner; that petitioner challenged the order of this Court before the Honourable Supreme Court who set. aside the order of this Court; that the learned Magistrate in spite of that order dismissed application of the petitioner and then learned Addl. Sessions Judge dismissed criminal revision filed by the petitioner; that now the petitioner has challenged the order of learned Magistrate and of learned Additional Sessions Judge through the instant Criminal Miscellaneous before this Court; that the discharge order was passed on 26-1-2006; that order of this Court was passed on 31-3-2006 which is at page 42; that learned Magistrate summoned the petitioner on 14-4-2006 which is at page 48 and that Honourable Supreme Court set aside the order of the High Court which is at page 51.

2. On the ;other hand learned counsel for respondents submits that the respondent had not moved any application before the learned trial Court for summoning the accused in F.I.R. No.266 of 2005 registered in Police Station Gulberg, Lahore; that in the instant F.I.R. investigation was conducted and challan was submitted before the learned trial Court; that upto the High Court bail before arrest applications of the petitioner were dismissed; that on 7-11-2005 petitioner was arrested; that thereafter petitioner applied for bail after arrest before learned Magistrate and learned Additional Sessions Judge which were dismissed; that in the meanwhile petitioner submitted an application for transfer of the investigation through his brother which was allowed; that in the second investigation the petitioner was declared innocent. Learned counsel referred to page 24 of this petition No. 1094-M-2009 which is discharge report prepared on 28-1-2006; that no order for cancellation was passed on this discharge report and nothing is available on the record; that petitioner moved an application under section 63, Cr.P.C: for his discharge from the case before the learned Magistrate; that no notice was issued to the respondent/complainant and the same was allowed on the same day i.e. 26-1-2006; that the said order was impugned before this Court through writ petition No.1066 of 2006, dated 31-3-2006 and final order was passed by this Court; that charge was framed on 26-1-2006 in the instant case. Learned counsel has referred to his prayer in the instant petition, the prayer in said writ petition was that discharge order passed by learned Magistrate be set aside; that writ petition was allowed by setting aside the order passed by learned Magistrate dated 26-1-2006; that the petitioner was allowed bail in the sum of Rs.100,000; that order passed in writ petition No.1066 of 2006 by this Court and two other orders were assailed before the Honourable Supreme Court in CPLA No.722-L-2006; that the order of Honourable Supreme Court is Annexure "K" at. page 49 of the instant Criminal Miscellaneous order was passed in-CPLA No.722-L-2006 and learned counsel submits that:-- "The issue in the connected petitions bearing Nos.805-L of 2006 and 804-L of 2006, is the same and he would not press those petitions for the present if the question of re-investigation in all the F.I.Rs. is taken up in this petition i.e. C.P.L.A. No. 722-L of 2006 which has been referred by learned counsel and notices were issued to the present respondents."

3. Learned counsel submits that final order was passed by the Honourable Supreme Court which is at pages 51 to 53, dated 5-1-2007. Learned counsel has referred two paragraphs of the order of Honourable Supreme Court of Pakistan which is as under:-- "The only concern expressed by the learned counsel for the complainant however is that on the basis of the report in the subsequent investigation the petitioner is seeking acquittal from the trial Court. Petitioner's apprehension is misconceived as law by now is well-settled that in such a situation the report prepared by the police in subsequent investigation can be placed before the trial Court and it is for the Court to consider it along with other evidence to ensure complete justice."

4. Learned counsel submits that as far as order passed by this Court in writ petition No.1066 of 2006 is still intact. I have heard learned counsel for the parties at length and have gone through the record with their able assistance. The subject matter of these proceedings is F.I.R. No.266 of 2005 for an offence under section 489-F, P.P.C. registered with Police Station, Gulberg, Lahore. Liaqat Hussain, petitioner is accused in the case. After investigation, the challan was submitted before the trial Magistrate on 27-7-2005. The investigation was then transferred on the recommendations of the Board to DSP, Saddar Division, Lahore who declared the petitioner innocent. The accused petitioner thereafter moved an application under section 63 of the Code of Criminal Procedure before the trial Magistrate who vide order, dated 26-1-2006 discharged the accused petitioner. It is pertinent to mention here that there is an order dated 20-1-2006 on the file, which shows that the accused petitioner was charged sheeted, to which he denied, and prosecution witnesses were summoned for 3-2-2006. The complainant challenged the order of re-investigation by way of Writ Petition No.1066 of 2005. After hearing both the sides, the writ petition was allowed and the order for re-investigation was set aside vide order, dated 31-3-2006. Aggrieved by the said order, the accused petitioner filed CPLA No. 722-L of 2006 which was allowed vide judgment, dated 5th January, 2007 and the operative part of the judgment reads as under:-- "The only concern expressed by learned counsel for the complainant however is that on the basis of the report in the subsequent investigation the petitioner is seeking acquittal from the trial Court. Petitioner's apprehension is misconceived as law by now is well settled that in such a situation the report prepared by the Police in subsequent investigation can be placed before the trial Court and it is for the Court to consider it along with other evidence to ensure complete justice." "In the afore referred circumstances, this petition is converted into appeal and allowed; the impugned order is set aside and it is directed that the report prepared by the Investigating Agency pursuant to subsequent investigation shall be placed before the trial Court which shall consider the same in accordance with law. Disposed of." The accused petitioner thereafter moved an application under section 249-A, Cr. P. C., which was dismissed, vide order, dated 24-6-2008 after going through the order passed by the Hon'ble Supreme Court. It was observed by the trial Magistrate that the accused was earlier charge sheeted vide order, dated 20-1-2006 and the prosecution evidence was also summoned. Criminal Revision filed by the accused was dismissed vide order, dated 31-1-2009 by the learned Additional Sessions Judge, Lahore. After hearing learned counsel from both the sides and going through the record, it established that the petitioner had issued the cheques, which were dishonoured and criminal cases were registered. Here I with advantage may reproduce the order dated 7-11-2005 passed by me in Criminal Miscellaneous No. 5243/B of 2005. "I have heard learned counsel for the parties. It has not been denied by the petitioner that he has signed these cheques. The dates of encashment of these cheques are yet to come i.e. 15-12-2005 and 30-12-2005 but the version of the petitioner is that complainant obtained these cheqeus fraudulently...." Now, I may advert to an agreement entered into between the parties. It is dated 18-4-2005. The opening sentences of the said agreement are reproduced: The order for transfer of investigation was passed on 12-12-2005 in which the petitioner was declared innocent. The learned trial Magistrate vide order, dated 26-1-2006 discharged the accused on the ground that the cheque in question was not issued by him. gets strength from the report of the Director Technical, F.I.A Headquarters, Islamabad, The accused having confessed the issuance of cheque and in lieu thereof also having issued two cheques and entered into an agreement and on the basis of that agreement got his bail confirmed, cannot now be allowed to take a somersault and say that the cheques were got under coercion or even on the report of the Director Technical, F.I.A., no reliance can be placed. The orders of both the Courts below, dated 24-6-2008 passed by the learned trial Magistrate as also the order, dated 31-1-2009 passed by the learned Additional Sessions Judge are just, fair and in accordance with the facts and circumstances of the case and no illegality has been committed by the Courts below in not acquitting the accused petitioner on the application moved by him under section 249-A, Cr.P.C. The petition in hand being meritless is dismissed. However, the learned trial Magistrate is directed to conclude the trial within two weeks after the receipt of this Court's order. N.H.Q./L 17/L Petition dismissed.