2010 P Cr (PLP)

ASIF SAEED KHAN, KHOSA, J.

Through this writ petition Zulfiqar Mustafa petitioner has sought a declaration that F.I.R.No.127 registered at Police Station Samanabad, Lahore on 25-3-2008 at the instance of Liaqat Ali complainant in respect of an offence under section 489-F, P.P.C. is without lawful authority and of no legal effect and practically the petitioner has sought quashing of the said F.I.R. by this Court.,

2. At the outset it has been pointed out by the learned Additional Advocate-General appearing for the State that after completion of investigation of the above mentioned criminal case a Challan had been submitted before the learned trial Court on 7-10-2008 and the case is now pending trial awaiting decision of the present writ petition for the last about a year and a quarter. Normally after completion of the investigation and submission of a Challan quashing of an F.I.R. is not resorted to by this Court as the concerned accused person has an adequate alternate statutory remedy available to him before the trial Court under sections 249-A/265-K, Cr.P.C. for seeking his premature acquittal but the learned counsel for the petitioner has insisted that the present writ petition may be decided on its merits because this writ petition had been filed before this Court prior to submission of the Challan before the trial Court.

3. I have heard the learned counsel for the parties at some length and have gone through the documents appended with this writ petition as well as the precedent cases referred to by them with their assistance.

4. It has straightaway been noticed by me that the impugned F.I.R. had been registered by the local police upon a direction issued by this Court at the instance of the complainant. It is of critical importance to mention here that issuance of the relevant cheques by the petitioner in favour of the complainant and dishonouring of the said cheques by the concerned bank on account of insufficiency of funds are facts which are not disputed by the petitioner. The question as to whether the relevant cheques had been issued by the petitioner on the basis of dishonest intention is a question which necessarily calls for holding of a factual inquiry which exercise cannot be undertaken by this Court in the present summary proceedings under Article 199 of the Constitution. Apart from that, as already observed above, a Challan has already been submitted before the learned trial Court in connection with this case and. the question of dishonest intention on the part of the petitioner shall be decided by the learned trial Court on the basis of the evidence which is yet to be adduced before it.

5. It has been argued by the learned counsel for the petitioner that the provisions of section 489-F, P.P.C. did not stand attracted to the allegations levelled by the complainant because the relevant cheques had not been issued by the petitioner for the purpose of repayment of any loan and the said cheques had in fact been issued towards investment in a partnership business. According to the learned counsel for the petitioner the relevant cheques had been issued by the petitioner in favour of the complainant by way of providing surety for the profits to be accrued in the business of the parties. These submissions of the learned counsel for the petitioner overlook the fact that it had never been alleged by the complainant that the relevant cheques had been issued by the petitioner towards repayment of any loan and the case of the complainant has throughout been that the said cheques had been issued by the petitioner for the purpose of discharging some financial obligations of the petitioner existing towards the complainant and if that be so then the provisions of section 489-F, P.P.C. could prima facie legitimately be pressed against the petitioner.

6. It has also been argued by the learned counsel for the petitioner that the provisions of section 489-F, P.P.C. stand attracted only to a case where a cheque is issued in favour of the a bank towards repayment of a loan obtained from such bank and not to a case wherein a cheque is issued by one individual in favour of an other individual in furtherance of their private dealings. The learned counsel for the petitioner has relied in this respect upon the cases of Muhammad Ayub v Rana Abdul Rehman and another 2006 YLR 1852 and Maj. Rtd. Javed Inayat Khan Kiyani v. The State PLD 2006 Lahore

752. This submission of the learned counsel for the petitioner as well as his reliance upon the above mentioned precedent cases have been found by me to be utterly misconceived as it had never been held in the said precedent cases as canvassed by the learned counsel for the petitioner. In the case of Maj. Rtd. Javed Inayat Khan Kiyani v. The State PLD 2006 Lah. 752 and also in the case of Muhammad Iqbal v Station House Officer, Police Station Hajipura, Sialkot and 2 others PLD 2009 Lah. 541 it had clearly been recognized and held that the provisions of section 489-F, P.P.C. do come into play in cases of dishonouring of cheques dishonestly issued by one individual in favour of another individual. It had further been held in the said cases that in a case of a dishonoured cheque issued by an individual in favour of a bank towards repayment of a loan obtained from the bank the provisions of section 20(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 are applicable. It appears that the learned counsel for the petitioner has not read the above-mentioned precedent cases before placing reliance upon the same.

7. It has further been argued by the learned counsel for the petitioner that the word "obligation" used in section 489-F, P.P.C. has not been defined in the Pakistan Penal Code and, thus, the definition of that word contained in section 3 of the Specific Relief Act, 1877 is to be borrowed so as to understand the correct import of the provisions of section 489-F, P.P.C. He has also referred in this context to the provisions of section 12 of the Specific Relief Act, 1877. According to the learned counsel for the petitioner an obligation to pay a sum of money on the basis of a contract gives rise to a civil liability and criminal prosecution for the same cannot be launched. This submission of the learned counsel for the petitioner has also failed to impress me because a word used in a criminal statute does not necessarily have to borrow a meaning from a civil statute. Through an amendment introduced in the Pakistan Penal Code section 489-F, P.P.C. had been inserted therein and dishonestly issuing a cheque for the purpose of discharging an obligation which cheque is dishonoured has clearly been made by the legislature a crime and, thus, the petitioner may not be allowed to take shelter behind a civil statute to avoid his criminal liability in that regard. These observations made by me also take care of the next arguments, advanced by the learned counsel for the petitioner regarding the petitioner's obligations being civil in nature entailing civil liability based upon rendition of accounts. When the law itself has made a particular action criminally culpable then an attempt to thwart the intention of such law with reference to a civil statute may not be acceptable.

8. It has lastly has been submitted that the learned counsel for the petitioner that the relevant cheques had never been given by the petitioner to the complainant with any dishonest intention of the purpose of avoiding payment and, thus, the provisions of section 489-F, P.P.C. cannot be pressed against him. He has referred in this respect to the provisions of section 24, P.P.C. defining "Dishonest". The learned counsel for the petitioner has maintained that the petitioner had, not obtained any wrongful gain through dishonouring of the relevant cheques and, thus, his conduct could not be termed as dishonest and, therefore, the petitioner cannot be prosecuted for an offence under section 489-F, P.P.C. This submission of the learned counsel for the petitioner conveniently overlooks that the definition of "Dishonest" contained in section 24, P.P.C. not only speaks of wrongful gain of one person but it also speaks of wrongful loss to another person. In the case in hand the petitioner appears to have gained by not parting with the sum of money which was the subject-matter of the relevant cheques and the complainant had apparently suffered a wrongful loss on account of dishonouring of those cheques. In this view of the matter the definition of "Dishonest" contained in section 24, P.P.C. seems to be applicable against the petitioner rather than providing any shelter to him.

9. The discussion made above leads me to conclude that there is hardly any occasion for this Court to interfere in the matter at such a stage when the learned trial Court has already taken cognizance of the case and it is yet to receive evidence for resolution of various factual and legal issues involved in this case. The learned counsel for the complainant has referred to the cases of Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCIMIR 1192, Muhammad Mansha v. Station House Officer, Police Station City, Chiniot, District Jhang and others PLD 2006 SC 598 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 to contend that this Court ought to be slow in interfering in the matter at such a juncture and in the above mentioned circumstances of this case I have found the learned counsel for the complainant to be quite justified in that regard. This writ petition is, therefore, dismissed with no order as to costs. H.B.T./Z-4/L??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.