2019 PLP 1104 (YLR)

ABDUL MAALIK GADDI, J.

Through this Criminal Miscellaneous Application, the Applicant has impugned the validity of order dared 08.05.2018, whereby an application under section 22-A, Cr.P.C. was declined by the Ex-Officio Justice of Peace/XIIth Additional District Sessions Judge, Karachi-South in Crl. Misc. Application No.542/2018, whereby Applicant's prayer for issuance of directions to the concerned Station House Officer for registration of FIR against the nominated accused, has been dismissed.

2. The brief facts leading to filing of instant Misc. Application as averred therein that one Habib-ur-Rehman (proposed accused) obtained loan of Rs.95,14,98,101/- from Summit Bank and Applicant stood his guarantor for the said loan. Habib-ur-Rehman did not return the loan and Bank filed case bearing No.B-22/2016 before this Court and also demanded the said loan from the Applicant as guarantor in respect of said amount. Habib-ur-Rehman dishonestly issued a cheque of Rs.45,00,00,000/- (Forty Five Crore) to the Applicant for fulfilment of his obligations which was dishonored on the presentation before the concerned Bank for the reason of 'INSUFFICIENT BALANCE". Applicant moved application to the Respondent No.2 for registration of a case and upon his reluctance, approached the Ex-Officio Justice of Peace who through impugned order dismissed the Application filed by Applicant under section 22-A, Cr. P.C.

3. During the course of argument, learned counsel for Applicant has reiterated the same facts and grounds which he has stated in his Misc. Application. He contended that the impugned order passed by the learned Justice of Peace is against law and facts. According to him the Applicant was the friend of proposed accused Habib-ur-Rehman and given loan to him who was the owner of Habib Trading Company 100% from Summit Bank amounting to Rs.95,14,98,101/- and the Applicant was the guarantor of the said loan. He has contended that the proposed accused did not return the said loan and Bank filed a case bearing No.B-22/2016 before this Court for recovery of loan amount and also demanded said loan from the Applicant and in this connection Applicant so many times requested the proposed accused to return said loan to which he issued a cheque to the Applicant amounting to Rs.45,00,00,000/- on 28.04.2017, which was bounced on its presentation on 25.05.2017 with remarks of Bank as "INSUFFICIENT BALANCE". He also contended that Applicant thereafter informed to the proposed accused for the dishonored of cheque but he has not paid any attention to it. It is also argued that in view of the above facts and circumstances, the Ex-Officio Justice of Peace was duty bound to determine the existence of cognizable offence without going into the question of credibility of information in question even without calling any comments/report from the SHO; that Ex-Officio Justice of Peace was not justified in law by acting upon the defence of proposed accused instead of on the documentary evidence i.e. cheque, its return memo. of Bank and facts as narrated by the Applicant in his complaint; that from the material on record, cognizable offence was spelled out and the provision of Section 154, Cr.P.C. commanded SHO to lodge FIR of such offence and perhaps realizing such duty, police through its report dated 11.04.2018 has requested the Ex-Officio Justice of Peace to direct the Applicant to contact the police station for recording of his statement, but learned Justice of Peace instead of passing directions to the police for recording the statement of Applicant, issued notice to proposed accused and passed the impugned order contrary to the facts, record and law, therefore, he was of the view that the impugned order in the given circumstances may be set aside and appropriate directions may be issued to the concerned SHO for recording the statement of the Applicant under section 154, Cr.P.C. and if cognizable offences is made out then order of FIR may be passed. In support of his contentions learned counsel for the Applicant has relied upon the following case laws.

1. Muhammad Bashir v. Station House Officer, Okara Cantt. and others reported in PLD 2007 SC 539

2. Mst. Kounjan v. Station House Officer, Lakhi Ghulam Shah and others Reported in 2016 PCr.LJ 112

3. Mst. Haseena v. Station House Officer, Police Station, Kotdiji and others Reported in 2015 PCr.LJ 790

4. Muhammad Hanif v. Station House Officer of Police Station Naushero Feroz and others Reported in 2013 PCr.LJ 449

4. Conversely, learned counsel for the Proposed Accused while supporting the impugned order passed by the learned trial Court, has denied the allegations as levelled in the application and submits that the proposed accused filed a Suit bearing No.B-29/2016 in this Court against Bank as well as Applicant, as the matter pertains to civil nature and Applicant is trying to convert the same into criminal litigation. He has submitted that the cheque in question was misplaced for which the proposed accused has sent letter to SHO concerned as well as Bank Manager on 12.02.2015 which was duly received by them, however, the cheque in question as alleged to have been issued on 28.04.2017 which was allegedly bounced on 25.05.2017, thus it is crystal clear that the Applicant with mala fide intention prepared forged signature of the proposed accused which was never issued in favour of the Applicant. He further contended that Courts were duty bound to take care of such misuse and according to him the learned trial Court with sufficient reasons dismissed the prayer of the Applicant as such he was of the view that such type of application should not be entertained lightly in a mechanical manner for direction to the Police to register statement of Complainant and start prosecution against the alleged accused persons. In view of the above facts and circumstances of the case, counsel for the proposed accused has prayed for dismissal of this Criminal Misc. Application. In support of his contentions learned counsel for the Proposed Accused has relied upon the following case laws.

1. Younas Abbas and others v. Addl. Sessions Judge Chakwal, reported in PLD 2016 SC 581

2. Imtiaz Ahmed Cheema SHO v. Station House Officer, Police Station, Dharki, Ghotki and others, reported in 2010 YLR 189.

3. Altaf Hussain v. Station House Officer, Police Station, Mahotta and others reported in 2015 YLR 798

5. Learned APG while supporting, the argument of learned counsel for the Applicant has argued that in this case sufficient documentary evidence is on record against the proposed accused to the effect that proposed accused has committed cheating/forgery with the Applicant, but the Presiding Officer of the learned trial Court has dismissed the Application while discarding the documentary evidence without assigning any good reasons.

6. Arguments heard and record perused.

7. It appears from the record that this case is based upon documentary evidence. It is the case of the Applicant that proposed accused issued him a cheque amounting to Rs.45,00,00,000/- on 28.04.2017 and on 25.05.2017 when it was presented before the concerned Bank for encashment, the same was dishonored with remarks of the Bank Authority as "INSUFFICIENT BALANCE". The contention of the counsel for the proposed accused that the cheque was misplaced and in this regard such information was conveyed to the concerned authorities on 12.02.2015, but in this connection surprisingly uptil now, no FIR for misplacing of the said cheque has been registered by proposed accused against anybody. From the perusal of documents available on record, it reveals that tentatively the case pertains to cheating/ forgery and there is documentary evidence on record to take cognizance of the case by the concerned authorities, but no action has been taken by the concerned authorities in this regard. In view of the arguments as advanced by the parties' counsel and in view of the documents on record, in my considered view SHO Police Station Clifton, Karachi was required and bound to record the statement of the Applicant under section 154, Cr.P.C. SHO had no power to refuse to record the statement of the Applicant, if from information/statement a cognizable offence was made out. It is immaterial whether information is false or correct, but the condition precedent for recording the FIR under section 154, Cr.P.C. book is that information must disclosed an offence and that too a cognizable one. No doubt after registration of FIR investigation process starts and it is for investigation officer to ascertain whether the information is true or false under the law. If, information is false then Police Officer is empowered to register a case against complainant under the relevant provisions of P.P.C. If information discloses an offence which is not cognizable by the Police even then SHO is required and bound under section 155, Cr.P.C. to record it in a station diary of Police Station and referred the informant to the Magistrate having territorial jurisdiction. In no circumstances, police officer SHO can refuse to enter the information in Section 154, Cr.P.C. book or in station diary of the police station as the case may he except on one condition that from information, no offence at all is made out. From the perusal of the order passed by Addl. Sessions Judge/Ex-Officio of Justice of Peace, it transpires that matter has been scrutinized minutely which is not the requirement of the law. Impugned order of Justice of Peace showed that Applicant's application was turned down mainly on the ground that the parties are already under litigations, but in my view it does not mean that no criminal case could be filed of any complaint, if any cognizable offence is committed by anybody. In this case, Applicant on the basis of dishonored cheque as well as on the basis of cheating/forgery intend to lodge FIR against the proposed accused, therefore, it is to be adjudged at the time of recording statement of the Applicant whether the same is bona fide or mala fide intention it can only be determined after recording the statement of the Applicant. In this case learned Addl. Sessions Judge dismissed the application while touching the merit of the case. He was required to see as to why SHO had failed to perform his statutory duty. Deeper appreciation at the time of registration of the FIR was not required as such order passed by the learned Addl. Sessions Judge dated 08.05.2018, is not sustainable under the law and the same is set aside.

8. In view of the above, this application is allowed and impugned order dated 08.05.2018 is set aside. The concerned SHO is hereby directed to record the statement of the Applicant in his verbatim, and if such statement reflects that the ingredients of cognizable offence are available to register the FIR against the proposed accused person, he shall register an FIR against him. Since the complex questions are involved in this case and parties are already under litigations, therefore, under the circumstances it is made clear that proposed accused shall not be arrested unless and until, the Investigating Officer has collected any tangible/concrete evidence against him.

9. With the above observation, the instant miscellaneous application is disposed of in the above terms along with listed applications. JK/S-64/Sindh Application accepted.