2015 M L D 1151
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
SAID MUHAMMAD--- Petitioner
versus
STATION HOUSE OFFICER, POLICE STATION, SHALKOT, QUETTA and another ---
Respondents
C.P. No.979 of 2014, decided on 13th February, 2015.
Penal Code (XLV of 1860) ---
----S. 489- F---Criminal Procedure Code (V of 1898), Ss.22- A, 22- B & 179 ---Police Rules, 1934,
R.25(4) ---Constitution of Pakistan, Art.199---Constitution petition ---Dishonestly issuing
cheques ---Powers and functions of Justice of Peace---Registration of FIR ---Jurisdiction of Court -
--Cheques issued were presented where same were dishonoured---SHO concerned having
refused to register FIR against the respondent, petitioner filed application under S.22- A, Cr.P.C.
which was dismissed by the Justice of Peace vide impugned order on the sole ground of
jurisdiction ---Validity ---Ingredients of offence under S.489- F, P.P.C., against accused prima
facie, being present, it would not be just to stifle the criminal proceedings at the initial stage ---
When the cheques were dishonoured the offence was completed at the place where cheques were
dishonoured--- Under provisions of S.179, Cr.P.C., when any person committed any offence, or
did some act, and due to that act any consequence ensued, such off ence could be inquired into or
tried by the court where the act was done, or the consequence ensued ---Provision of S.179,
Cr.P.C. was totally ignored, or escaped un- noticed from the Trial Court, while passing impugned
order ---Petitioner could not be made t o suffer merely on the ground that he had not initiated
criminal proceedings at the place wherefrom the cheques were issued ---Exercise carried out by
Justice of Peace was beyond the scope of S.22- A, Cr.P.C.---Function of the Justice of Peace, was
to check whether the statement of the complainant intimating or informing the commission of
any cognizable offence was recorded or not ---Justice of Peace could not touch the merits of the
case, or to give certain direction, which were beyond the scope of powers and jurisdiction ---
Justice of Peace could not determine point of jurisdiction, which should have been left opened
for SHO concerned to apply his own independent mind--- Impugned order passed by Justice of
Peace, was set aside---SHO was directed to lodge the FI R as per statement of the petitioners
against proposed accused strictly in accordance with law.
Mazhar Hussain v. The State PLD 2010 Lah. 60 ref.
Rehmatullah Barrech for Petitioner.
Respondent No.1 in person.
Date of hearing: 13th February, 2015.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---Through this petition the
petitioner seeks quashment of the order dated 28th November 2014 ("impugned order") passed
by the learned Additional Sessions Judge -VI, Quetta ("trial Court") whereby the application
under Section 22- A of the Criminal Procedure Code, 1898, (Cr.P.C.) for lodging FIR against the
proposed accused persons was dismissed.
2. Facts of the case are that the petitioner being businessman in fruit and vegetable entered
into an agree ment with one Muhammad Wajid Awan in the year 2013 and sent a consignment to
him. Thereafter the said Muhammad Wajid Awan executed an agreement with the petitioner for
payment of Rs.9,20,000. In response to the said agreement Muhammad Wajid Awan issued a
cheque bearing No.33774496 amounting to Rs.400,000 dated 28- 10-2014 of the Allied Bank,
Rawalpindi, which was presented to Habib Bank Hazar Ganji Branch, Quetta but the same was
dishonored and another cheque bearing No.33774495 dated 30- 8-2014 amounting to Rs.420,000
of the Allied Bank Rawalpindi was also dishonored by the Bank at the relevant time. Since both
the cheques were dishonored the petitioner approached the respondent No.1 for registration of
FIR but he refused to do so. Thereafter the petitioner a pproached the learned trial court and filed
an application under Section 22- A of the Criminal Procedure Code, 1898 Cr.P.C.") which too
was dismissed vide impugned order. Hence, this petition.
3. Learned counsel for the petitioner contended that the learned trial court has passed the
order without proper appreciation of facts and circumstances of the case. He contended that the
cheques issued to the petitioner have been dishonored but the learned trial court did not apply the
judicial mind in order to reac h the just conclusion of the case and has rejected the petitioner's
application in utter violation of principles of justice and equity. Learned counsel further added
that the act committed by the said Muhammad Wajid Awan is a cognizable offence under secti on
154, Cr.P.C. and the respondent No.1 was duty bound to have lodged the FIR at the first
instance, but by refusing to lodge the FIR the respondent No.1 has violated and infringed the
basic fundamental rights of the petitioner as provided under the Consti tution of Islamic Republic
of Pakistan. Learned counsel was of the view that the learned trial court while rejecting the
application filed under Section 22- A, Cr.P.C. by the petitioner held that the signatures in the
agreement are different from that found in the cheques thereby, the learned trial court before
registration of FIR and commencement of investigation itself has conducted investigation which
otherwise was the duty of the police officials, therefore, the impugned order is not sustainable in
the e yes of law. The learned counsel was of the view that the other reason which prevailed upon
the learned trial court was the point of jurisdiction, which was not resolved in accordance with
principles of administration of justice. He placed reliance on the c ase of Mazhar Hussain v. The
State (PLD 2010 Lahore 60). He asserted that the said Muhammad Wajid Awan was bound to
return the amount to the petitioner in lieu of the transaction which took place between them, but
by issuance of cheques which were dishonor ed on presentation the said Muhammad Wajid Awan
has committed the offence of cheating forgery within the meaning of section 489- F, P.P.C.
Arguing further maintained that keeping in view the losses incurred by the petitioner, the
respondent No.1 shall be di rected to lodge the FIR against the proposed accused viz Muhammad
Wajid Awan for the offence committed by him and the order passed by the learned trial court be
quashed.
4. The respondent No.1 i.e. S.H.O. Shalkot police station is present and submitted a report,
which was taken on record, to the effect that the petitioner never submitted an application before
him in respect of lodging the FIR.
5. Heard. Record perused.
6. The dispute between the parties arose out of a transaction for shipment of fruit and
vegetable. After the transaction two cheques in sum of Rs.820,000 were issued in the name of
petitioner which on presentation to the bank were dishonored on representation to the bank the
petitioner could not encash the amount of the cheques issued to him. On minute examination of
the record and assessment of the contention raised by the petitioner's counsel it can safely be
concluded that the ingredients of offence under section 489 -F, P.P.C. against the accused
Muhammad Wajid Awan prima facie exist, therefore, it will not be just to stifle the criminal
proceeding at the initial stage. The learned trial court while rejecting the application filed by the
petitioner under section 22- A, Cr.P.C, observed in para 5 of the impugned order as under: --
" So in view of the above discussion, I am of the considered opinion that the cognizable
offence has not been committed by the Muhammad Wajid Awan within the jurisdiction of the
Police Station Shalkot Quetta, therefore, applicant is directed to approach the proper police
station lodging the FIR under the relevant section of law where the bank situated or checque [sic]
were handed over applicant."
7. Perusal of the record reveals that the petitioner deposited the cheques in question in
Habib Bank Limited, Hazar Ganji Branch, Quetta. The moment, the cheques were dishonored, at
Hazar Ganji, Quetta, offence was completed. The offence under section 498 -F, P.P.C. was
completed at the place where the cheques in question were dishonored, though the cheques
issued to the petitioner were of a bank at Rawalpindi, but the consequence of the offence in terms
of section 179, Cr.P.C. ensued at Quetta. There is no legal bar and prohibition on the petitioner in
this regard, it is his option or choice to initiate criminal proceed ings at either of the place under
Section 489- F, P.P.C., therefore, I am of the view that at both the places concerned police
stations have got jurisdiction to lodge the FIR. The petitioner opted to have the FIR registered
with police station Shalkot, Quet ta, where the Habib Bank Hazar Ganji Branch, Quetta is
situated and where he deposited the cheques in question the Shalkot Police Station was
competent to conduct inquiry in the matter. Section 179 Cr.P.C., is very much clear on this point,
which is reproduced here under: --
179. Accused triable in district where act is done or where consequence ensues. When a
person is accused of the commission of any offence by reason of anything which had been done
and of any consequence which has ensued, such offence may be inquired into or tried by a Court
within the limits of whose jurisdiction any such thing has been done or any such consequence
has ensued.
8. Bare reading of section 179, Cr.P.C. referred above indicates that when any person
commits any offence or do some act and due to that act any consequence ensues, such offence
can be inquired into or tried by the Court where the act was done or the consequence ensued. I
am afraid that the provisions of section 179, Cr.P.C. was totally ignored or for that matte r
escaped un -noticed from the trial court, while passing the order impugned herein. The
petitioner's application has merely been struck down on the sole ground that the Shalkot Police
Station did not have jurisdiction in the case in hand. The Rule 25(4) of the Police Rules 1934,
provides that 'if any police officer registers a case without having jurisdiction and during the
investigation if it is discovered that offence committed in the jurisdiction of some other police
station then the police officer sent the information of the case to the officer In -charge of such
police station. The respondent No.1 instead of to lodge the FIR as per rule supra should have
transmitted the case to the relevant police station'.
It will be too technical knockout of the pet itioner to simply reject his application under
section 22- A, Cr.P.C. on the sole ground of jurisdiction. The petitioner cannot be made to suffer
merely on the ground that he has not initiated criminal proceedings at the place wherefrom the
cheques were iss ued i.e. Allied Bank Rawalpindi.
9. Whatever exercise was carried out by the learned Justice of the Peace, is beyond the
scope of Section 22- A Cr.P.C. The function of the Justice of Peace is to check whether the
statement of the complainant intimating or informing the commission of any cognizable offence
was recorded or not. It is not the function of Justice of Peace to touch the merits of the case or to
give certain directions, which are beyond his scope of powers and jurisdiction. The matter could
be si mply disposed of by the Justice of Peace with direction to the SHO to record the statement
of the applicant and if any cognizable offence is made out he will act in accordance with section
154, Cr.P.C. and there was no occasion or reason to determine the point of jurisdiction, which
should have been left opened for the SHO concerned to apply his own independent mind, which
he does in other cases to decide the point of jurisdiction in view of sections 177 and 179, Cr.P.C.
The question of jurisdiction is alwa ys determined by reference to the provision of Cr.P.C. It is a
general principle of law that all crimes are local. The jurisdiction to try a person for an offence
depends upon the crime having been committed within the area of said jurisdiction. It is basi c
requirement of law that a court within whose local limits or jurisdiction an offence is committed
will have jurisdiction in dealing with the matter. Section 179 Cr.P.C. applied to those offences,
which by their very definition consist of an act and its c onsequence. The consequence must form
part of the offence, and the act and consequence together must constitute the offence. The above
is the guidance provided in Cr.P.C. which is required to be considered in the registration of FIR.
For what has been discussed above, the petition in hand is accepted and the impugned
order dated 28th November 2014 passed by the learned Additional Sessions Judge -VI, Quetta is
set aside. Consequently, the respondent No.1 i.e. S.H.O. Police Station Shalkot, Quetta is
directed to lodge the FIR as per statement of the petitioner against the proposed accused strictly
in accordance with law.
HBT/40/Bal Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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