PLJ 2025 Civil (Note) 235
[Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat]
Present: Muhammad Naeem Anwar and Dr. Khurshid Iqbal, JJ.
GHULAM MUSTAFA--Petitioner
versus
STATE and 2 others--Respondents
W.P. No. 1461-M of 2022 with C.Ms. 2558-M & 2559-M of 2022,
decided on 26.1.2023.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, 1898 (V of 1898), S. 561-A--Pakistan Penal Code, 1860 (XLV of 1860), S. 489-F--Registration of FIR--Cheque dishonoured--Agreement (iqrarnama)--Quashment of FIR--Power of High Court--Issuance of specific amount cheque on different date--It is a settled law that High Court could neither act as an investigator nor could control investigation or any proceedings pending before a competent Court of law--Courts have right to interpret law and High Court had no jurisdiction whatsoever to take the role of investigating agency--Petition dismissed. [Para 6] A & B
Ch. Sajid Abdullah Sraa, Advocate for Petitioner.
Date of hearing: 26.1.2023.
Judgment
Dr. Khurshid Iqbal, J.--A criminal case vide FIR No. 340 of 31.08.2021 has been registered against Ghulam Mustafa (the petitioner), a resident of Bagwal Khas, District Chakwal, Punjab Province, under Section 489-F, PPC, at the Police Station Dir City, District Dir Upper. The petitioner avers that the aforesaid criminal case is false and baseless. He prays before us that the said criminal case may be quashed under Article 199 of the Constitution read with Section 561-A of the Criminal Procedure Code, 1898.
2. We have heard Ch. Sajid Abdullah Sraa, a learned advocate from Islamabad, counsel for Ghulam Mustafa, the petitioner, at length and perused the material available on the record.
3. Perusal of the record reflects that one Malak Intesar (the Respondent No.2), a resident of Islamabad, presently residing in Malak Plaza, situated in Dir Bazaar of District Dir Upper, has registered a criminal case against the petitioner on the strength of FIR No.340, dated 31.08.2021 under Section 489-F, PPC, in Police Station Dir City, District Dir Upper. The allegation against the petitioner jotted down in the FIR is that he has issued a cheque bearing No.1626606971, dated 05.03.2021 of Rs.10,000,000/-(rupees one crore) towards certain payments of money (as part of a total amount of Rs. 35,000,000/-(rupees three crore fifty lac), which was to be drawn from the main bazaar Dir Branch of the MCB from his account bearing No. 00748010100002541. The cheque has been dishonoured. The learned counsel argued that the parties remained business partners and there is a dispute between them over the aforesaid total amount of Rs. 35,000,000/-. He maintained that the respondent No.2 has registered three other criminal cases for the same offence (Section 489-F, PPC) in Islamabad and the petitioner has been acquitted in one of those cases.
4. On the record, a photocopy of the agreement (Iqrarnama) dated 02.03.2017 is available, which shows that the petitioner owes to the Respondent No.2 a debt of Rs.25,000,000/-(rupees two crore fifty lacs) towards the repayment of which he has given several cheques to him. It further shows that in the event of non-payment or dishonouring of the cheques, the Respondent No.2 would be at liberty to file legal action against him. It is pursuant to the aforesaid agreement that the respondent No.2 has registered the FIR in question in District Dir Upper and three others in Islamabad. For the sake of quick reading, the necessary details of other FIRs are shown in the table below:
Sr. # | FIR # with registration date | Police Station | Amount | Cheque # with date | Bank | |
1 | 83 of 22.01.2022 | Tamel Islamabad | 500,000 | 1632061179 of | JS Bank G-15 Islamabad | |
2 | 223 of 18.05.2020 | Koktsar Islamabad | Per cehque Rs. 500,000/-which total amount is Rs. 6,000,000/- | I | 1632061203 | JS Bank Blue Area Islamabad |
II | 1632061204 | |||||
III | 1632061205 | |||||
IV | 1632061206 | |||||
V | 1632061208 | |||||
VI | 1632061209 | |||||
VII | 1632061210 | |||||
VIII | 1632061211 | |||||
IX | 1632061212 | |||||
X | 1632061213 | |||||
XI | 1632061214 | |||||
3 | 594 of 16.12.219 | Tomal Islamabad | 7,770,000 | 1651666214 of 03.04.3018 | MCB Bhogwal, Chakwal Branch | |
5. It is abundantly clear from the above details that the cheque in question regarding which the criminal case in District Dir Upper has been registered is different in all respects from others. To elaborate further, the cheque in question relates to the Dir Bazar Branch of Muslim Commercial Bank (MCB). The mere fact that there is a dispute of repayment of Rs. 35,000,000/-is not sufficient ground for quashment of the FIR impugned. The reason is that the cheque in question is with respect to a specific amount, issued on a different date and drawable from a distinct branch of the MCB. The petitioner will be afforded an opportunity of hearing to present whatever contention (defence) he might have to defend himself from the charge leveled against him in the impugned FIR.
6. It is a settled law that the High Court could neither act as an investigator nor could control the investigation or any proceedings pending before a competent Court of law. A recent case on the subject is “Dr. Sikandar Ali Mohi-ud-Din vs. Station House Officer and others” reported as 2021 SCMR 1486. The Hon’ble Apex Court has held that the superior Courts of the country while dealing with such like matter had already given finding that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be defeated by resorting to constitutional jurisdiction of High Court Reference may also be made to the case of Rana Shahid Ahmad vs Tanveer Ahmed and others, reported as 2011 SCMR 1937 (Supreme Court of Pakistan), in which it was discussed with reference to the cases of Emperor vs. Khwaja Nazir Ahmad reported as AIR 1945 PC 18 and Hazari Lalal vs Rameshwar Prasad, reported as AIR 1972 SC 484. Similarly, in the case of “Dr. Ghulam Mustafa vs. The State and others” reported as 2008 SCMR 76 (Supreme Court of Pakistan, the Hon’ble Supreme Court has also held that our constitution is based on the doctrine of trichotomy of powers. The Courts have right to interpret the law and the High Court had no jurisdiction whatsoever to take the role of the investigating agency.
While further dilating upon the subject, the Hon’ble Court also referred to the case of Shah Sadiq vs Muhammad Ashiq reported as 2006 SCMR 276 at page 285 (Supreme Court of Pakistan), it was observed:
“20. It is pertinent to mention here that established practice before the creation of country was that learned High Courts were very reluctant to quash the proceedings under constitutional jurisdiction. The object and reason behind this practice was that the High Courts had to quash the proceedings summarily which would create chaos due to the following reason:
(i) All the procedure and authorities prescribed under Cr.P.C. would become redundant.
(ii) To interfere in the sphere allotted to the executive organ.
(iii) There is very likelihood of injustice in a summary disposal.
(iv) The cases are quashed at initial stages then it would create law and order situation as the people may resort to taking revenge from the opposite party.
(v) Deviation from the past practice is always dangerous.
(vi) Superior Courts always keep judicial restraint in view of Article 4 of the Constitution read with Article 5(2) of the Constitution.”
Another relevant case is that of Muhammad Mansha vs Station House Officer, reported as PLD 2006 Supreme Court 998 (Supreme Court of Pakistan), in which the following conclusion was drawn:
“This Court has been repeatedly reminding all concemed that determination of the correctness or falsity of the allegations levelled against an accused person; the consequent determination of the guilt or innocence of such an accused person and the ultimate conclusion regarding his conviction or acquittal, was an obligation cast on the Court prescribed by the Code of Criminal Procedure for the purpose on the basis of legal evidence led at the trial after a proper opportunity to both the parties to plead their causes. It is a principle too well-established by now that a resort to the provisions of Section 561-A, Cr.P.C. or to the provisions of Article 199 of the Constitution seeking quashment of a criminal case was an extraordinary remedy which could be invoked only in extraordinary circumstances and the said provisions could never be exploited as a substitute for the prescribed trial or to decide the question of guilt or innocence of an accused person on the basis of material which was not admissible in terms of Qanun-e-Shahadat Order of 1984.”
7. Sequel to our above discussion, we could not find any good ground for interference under article 199 of the Constitution read with section 561-A, Cr.P.C. We, therefore, dismiss the instant writ petition in limine, being devoid of merits.
(J.K.) Petition dismissed
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