PLJ 2006 Lahore 1441

PLJ 2006 Lahore 1441
[Rawalpindi Bench Rawalpindi]

Present: Syed Shabbar Raza Rizvi, J.

JAFAR ALI ALVI--Petitioner

versus

DISTRICT & SESSIONS JUDGE, ISLAMABAD and 4 others--Respondents

W.P. No. 2403 of 2005, decided on 28.4.2006.

(i)  Criminal Procedure Code, 1898 (V of 1898)--

----S. 188--Pakistan Penal Code (XLV of 1860), S. 489-F--Requirements--Offence was committed outside of Pakistan--Held: Registration of a case existence of correct or incorrect facts is not a requirement; information must disclose commission of a cognizable offence--Issued cheques were presented at Islamabad where respondent was maintaining his account therefore, legal action ought to had been initiated in relevant police station.        [P. 1443] A & B

(ii)  Police Rules, 1934--

----R. 25.2--Fair investigation--Obligation of police--Held: Fair and independent investigation was a statutory right and the same time obligation of police--Courts could neither directly interfere nor influence investigating officers in investigation--Petition dismissed.         [P. 1443] C

Sardar Muhammad Latif Khan Khosa, Advocate for Petitioner.

Dr. Z. Babar Awan, Advocate for Complainant.

Mr. Tanvir Iqbal, AAG.

Date of hearing : 28.4.2006.

Order

The petitioner filed this writ petition challenging the order of the learned Sessions Judge, Islamabad dated 14.7.2005 passed by the learned Sessions Judge, Islamabad whereby FIR No. 192/05 was registered under Section 489-F PPC at P.S. Kohsar, Islamabad.

2.  The learned counsel offered grounds that the learned Sessions Judge had no jurisdiction to make observations like, "it is an admitted fact that the cheques issued by Respondent No.2 were presented at Islamabad within the local limits of P.S. Kohsar, Islamabad, where the respondent is maintaining his account" . According to the learned counsel, these facts are no correct. The learned Sessions Judge also referred to Section 188, Cr.P.C. According to the learned counsel, pre-requisite of Section 188 Cr.P.C. were not fulfilled, therefore, reliance on Section 188 was absolutely incorrect and unwarranted. No certificate or approval was obtained from the political agent or from the Federal Government before passing order for registration of FIR. He further submitted that the cheques were issued from a company to company and cheques were not issued from an individual to individual, therefor, as such no offence was committed. The learned counsel submitted that Section 489-F PPC is not a valid piece of legislation. In this regard, he refers to a judgment of this Court passed by my learned brother Muhammad Akhtar Shabbir J. He also submits that dispute between the parties which is made basis, for registration of FIR was already decided by Civil Court in United Arab Emirates on 21.1.2004.

3.  On the other hand, the learned counsel for the complainant (Respondent No.4) submitted that in prayer clause of this writ petition validity of section 489-F PPC was not challenged. He further submits that whether the facts disclosed in the FIR or in the impugned order are correct or incorrect, they can only be determined through a proper investigation which cannot be undertaken under the constitutional jurisdiction. He further submitted that jurisdiction of the ex-office Justice of the peace/Sessions Judge, Islamabad under section 22-A Cr.P.C. is to be considered with provisions of section 154 Cr.P.C. which do not require correct or incorrect information in relation registration of an F.I.R. It only requires commission of a cognizable offence. He further contended that non-compliance of provisions of Section 188, Cr.P.C. is not a ground for quashment of FIR.

4.  I have considered the arguments of both the learned counsel with due consideration and attention. Whether Section 489-F PPC is a valid and a living law or not ? I have already passed a judgment on this point reported in 2005 P.Cr.LJ 1462, and I stick to my expressed in the said judgment; detailed reasons are already offered in the said judgment. No political agent exist in the terrotory in which the alleged offence was committed. It may be pointed out that Criminal Procedure Code was enacted for the Sub-continent but not for U.A.E. This part of Section 188, Cr.P.C. is only attracted if there is any political agent in the area where occurrence took place. As far as first part of Section 188 Cr.P.C. is concerned, it applies only to a citizen of Pakistan when he commits an offence at any place without or beyond the limits of Pakistan and if there is no political agent, the sanction of Federal Government shall be required. It has been reported in NLR 1999 SD 217, that sanction under Section 188 Cr.P.C. is a procedural requirement and can be produced even after submission of challan in a Court of competent jurisdiction. In a recent judgment reported as PLJ 2005 Lahore it has been held that permission can be secured even after submission of challan. Therefore, on this ground the order of the learned Sessions Judge or the FIR cannot be quashed. What is the impact of cheques issued by a company or signed on behalf of a company, in my humble view, requires investigation. Likewise, I agree with the learned counsel for the complainant that for registration of a case existence of correct or incorrect facts is not a requirement; requirement is that the information must disclose commission of a cognizable offence. I think, this proposition is well settled and does not require further elaboration elaboration.

5.  As a result of the above discussion and reason, this writ petition is dismissed. However, before I conclude, the I.O. is directed not to take any notice or influence of observations made by the learned Sessions Judge in the impugned order dated 14.7.2005 i.e. "it is an admitted fact that the cheques issued by the Respondent No.2 were presented at Islamabad within local limits of Police Station Kohsar, Islamabad where respondent is maintaining his account, therefore, legal action ought to have been initiated against the delinquent by Kohsar Police Station". Likewise, it is observed by the learned Sessions Judge that, "issuance of the cheques by Respondent No. 2 in favour of the petitioner and bounding of the some is a hard fact, and established through documents/bank memos. Prima facie, it stands established that Respondent No.2 is guilty of a cognizable offence". Fair and independent investigation is statutory right and the same time obligation of police. The Courts can neither directly interfere nor influence investigating officers in investigation. The I.O is directed that while investigating the instant FIR, he will bear in mind his responsibility and seek guidance from Rule 25.2. of the Police Rules, 1934.

 (Fouzia Fazal)       Petition dismissed.

For more, you can consult omara.khan789@gmail.com or call +923123450006