2006 P Cr (PLP)

ALI NAWAZ CHOWHAN, J.

The matter pertains to case F.I.R. No.801 dated 12-11-2003 registered under section 489-F, P.P.C. at Police Station Factory Area, District, Faisalabad. Relevant portion of the F.I.R. which was got recorded by Mian Muhammad Munir, the complainant is as follows:-- The challan in this case was submitted against all the persons named in the F.I.R. An application was moved For discharge of the petitioners Muhammad Arshad and Muhammad Younas out of them. But it appears that the learned trial Court had refused to discharge them. A Iv copy of the report under section 173, Cr.P.C. shows them both placed in column No.2 with the remarks that they were innocent. After the challan was submitted, an application was moved under section 249-A, Cr.P.C. asking for their acquittal. The learned trial Court while dismissing this application observed as follows:-- "My findings are that according to the contents of F.I.R. Arshad Younas, M. Younas and Shahid Younas had obtained Rs.10,00,000 from the complainant for providing cinema film material to the complainant and afterwards accused neither returned the amount nor supplied the cinema film material to the complainant so these accused had criminally misappropriated the amount of Rs.10,00,000 of the complainant and therefore, Arshad Younas and M. Younas cannot be acquitted from this case on the ground that section 489-F is only applicable to accused Shahid Younas who had issued the cheque as in my opinion section 406, P.P.C. is also attracted in the present case and this finding has also been given by learned duty Magistrate vide order, dated 17-1-2004 and even learned Additional Sessions Judge, FSD, vide his order, dated 15-2-2005 had not interfered the findings of the learned duty Magistrate and learned Additional Sessions Judge, FSD, had left this matter on the discretion of the trial Court so in my opinion under section 249-A, Cr.P.C. is not maintainable as present accused are nominated in the F.I.R. and prosecution witnesses have supported the version of the complainant in their statements under section 161, Cr.P.C." It has been argued that section 489-F, P.P.C. is specific to the person who issues the bounced cheque provided lie is also actuated with dishonesty. That for involving any other person, there is requirement of adding of additional offence. Initially, it was the argument of the learned counsel for the petitioners that section 406, P.P.C. was added but he could not explain as to why section 406, P.P.C. was added. Anyhow, the learned Additional Advocate-General has informed this Court that the same has been deleted. Learned counsel for the petitioners has also referred to a statement in a civil suit under Order XXXVII, rule 1 filed by the complainant, wherein he appeared as a plaintiff to specifically allege that 13 the check was issued by Muhammad Shahid Younas. Certified copy of the statement of Mian Muhammad Munir, the complainant, has been placed on record wherein he had said:-- This being the situation, one wonders whether on the basis of these facts the case under section 489-F, P.P.C. could proceed against the present petitioners Muhammad Arshad and Muhammad Younas. On the face of it, it appears that all efforts under the present circumstances to prosecute these petitioners may not result in their conviction ultimately and the case would only proceed against Muhammad Shahid Younas and if this is a position, this Court feels that dismissal of the application under section 249-A, Cr.P.C. was lack of exercise of jurisdiction. Anyway, presently this is an application under section 561-A, of the Cr.P.C. for quashment of proceedings as far as these two petitioners are concerned. As this Court has come to the conclusion that the case against the petitioners Muhammad Younas and Muhammad Arshad cannot proceed on the basis of the record available, it has no hesitation in directing the trial Court not to proceed against the petitioners. The case against them shall be regarded having been cancelled. With these observations, the writ petition is disposed of. H.B.T./M-117/L????????????????????????????????????????????????????????????????????????????????? Petition allowed.