2014 Y L R 753
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
UBAIDULLAH and another---Petitioners
Versus
The STATE and another---Respondents
Criminal Miscellaneous Quashment No.394 of 2013, decided on 31st October, 2013.
Criminal Procedure Code (V of 1898)---
----S. 561-A---Penal Code (XLV of 1860), Ss.419, 420, 471, 489-F & 34---Cheating by
personation, cheating and dishonest ly inducing delivery of property, using as genuine a forged
document, dishonestly issuing a cheque, common intention---Bu siness relationship between the
parties was not disputed and facts narrated in the F.I.R. attracted th e mischief of S.489-F, P.P.C.
which related to dishonestly i ssuing a cheque---Secti on 489-F, P.P.C. provided about fulfilment
of an obligation without being di stinguished as of civil or crim inal nature---Cheque was always
issued in terms of civil obligation and if di shonoured, it would turn into criminal offence---
Criminal proceedings being not barred in pres ence of civil proceedings, civil and criminal
proceedings could be proceeded simultaneously---Question of criminal liability could not be allowed to mix with a breach of civil obligation---Both wrongs be ing distinguishable in nature,
could be initiated at the same time---Challan in the case had been submitted against accused/petitioner after completion of formal inves tigation---Any interference at such a stage by
High Court while exercising inherent jurisdictio n under S.561-A, Cr.P.C., which could only be
exercised in extraordinary circ umstances, would amount to pre-em pting the powers of the Trial
Court---Petitioners/accused persons had alterna tive remedy before the Trial Court under S.249-
A, Cr.P.C.---Petition was dismissed.
Bashir Ahmed v. Zafar-ul-Islam and others PLD 2004 SC 298 rel.
Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Talib
Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177 and Deputy Inspector-General of
Police v. Anees-ur-Rehman Khan PLD 1985 SC 134 ref.
Khushal Khan Kasi for Petitioner.
Barrister Amanullah Achakzai for the Complainant.
Abdul Karim Malghani for the State.
Date of hearing: 4th October, 2013.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- In this case petitioners have
sought quashment of an F.I.R. No.2 of 2013 l odged with Police Station Chamaling, District
Loralai, under secti ons 419, 420, 471, 489-F read with section 34 of the Pakistan Penal Code
("P.P.C"), registered against them at th e instance of complain ant Haji Ghous-ud-Din.
2. The facts on having a glance over a record of the case are that complainant is owner of
land meant for coal mining in Chamaling area; the petitioners have to pay a 5 % commission on
total value of excavated coal. In lieu of out standing liability a cheque in favour of the
complainant amounting to Rs.1,217,750 was issued by Ain-ud-Din (Petiti oner No.2) being
manager at the instance of Ubaidullah (petitioner No.1/Contractor). On dishonouring of a cheque
in question, the petitioners were booke d in the aforesaid criminal case.
3. Mr. Khushal Khan Kasi Advocate for the Petitio ners inter alia contended that the parties
were not strangers to each other. The outstandi ng liability was created due to contractual
obligation and any breach does not constitute an offence. He pr oduced a bank depo sit receipt of
Rs.1,589,345 dated 7-11-2012 in favour of complainant. He stated that payment was made good
and any trial would be a futile exercise, therefore, proceeding initiated is liable to be quashed.
4. Barister Amanullah Achakzai, learned couns el for the complainant in rebuttal opposed
the plea and stated that out of total outstanding amount of Rs.4,000,000, an amount of
Rs.1,589,345 was deposited at belated stag e just to make a plausible defence in inte nded criminal
proceedings and said volume of outst anding liability is evident from the contents of the F.I.R. He
pointed out that earlier the petitioners were admitte d to protective bail by this court, and instead
of surrendering before the concer ned court they have filed the instant petition. The
Challan of the case has already been submitted be fore the learned Judicial Magistrate Loralai,
since the petitioners had an alte rnative remedy before the trial Court; therefore, they are not
entitled for the relief claimed.
5. Mr. Abdul Karim Malghani, Ad vocate appearing for the Stat e, urged that petitioners
being fugitive of law are not entitled to any relief. The prayer clause made in the petition is equal
to quashment of F.I.R. Since there is suffici ent material prima facie connecting the petitioners
in commission of the offence, therefore, he fi nally stressed for dismissal of the petition.
6. I have given my anxious view to the argumen ts of the learned counsel for the parties and
perused the record. Although, the bus iness relationship between the parties was not disputed, the
facts narrated in the F.I.R. attract the mischi ef of section 489-F, P.P.C., which relates to
dishonestly issuing a cheque. The perusal of prayer clause reveals that a quashment of
proceeding initiated on the basis of F.I. R. is questioned in the instant case.
7. The petitioner's case is based on the strength of depositing an amount of Rs.1,589,348
dated 7-11-2012, in favour of complainant. On the pretext, that pa yment was made good, no
obligation is remained unattended and the disput e between the parties relates to the breach of
civil obligation on the basis whereof, no criminal proceeding could be launched.
8. Before dilating upon the contention put fort h by the learned counsel for the parties, it
would be advantageous to ponder over the provisi on of section 489-F, P.P.C., which runs as
under:--
"[489-F. Dishonestly issuing a cheque. Whoe ver dishonestly issues a cheque towards
repayment of a loan or fulfilmen t of an obligation, which is di shonuored on presentation, shall be
punishable with imprisonment, which may extend to three years, or with fine, or with both,
unless he can establish for which the burden of proof shall rest on him that he had made
arrangement with his bank to ensu re that the cheque would be honored and that the bank was at
fault in not honouring the cheque.]"
If the plea raised by the peti tioners is accepted, the provision of section 489-F, P.P.C. will
become redundant. The language in provision (supr a) itself, speaks about fulfilment of an
obligation without being distinguished as of civil or criminal nature. A cheque is always issued
in terms of civil obligation and if dishonoured, it would turn into criminal offence.
9. The petitioners were admitted to protective bail vide this court order dated 6-8-2013 in
Criminal Bail Application No.395 of 2013 for a pe riod of two weeks i.e. till 22-8-2013. In this
case on three consecutive dates the counsel for the petitioners was directed to produce the
petitioners but they did not turn up. When inquired from the offi ce, it further revealed that the
petitioners did not furnish the re quisite surety bond and shield of protective bail had been gone
away on expiry of stipulation. The petitioners in stead of surrendering before the concerned court
within the stipulated peri od filed the instant petition.
10. Having considered the matter from all angels , I find no force in contention put forth on
behalf of the petitioners and in view rendered hereinabove, I am fortified on dictum laid down by
the Hon'ble Apex Court in judgment of Bashir Ahmed v. Zafar-ul-Islam and others reported in
PLD 2004 SC 298. Wherein, the correct import of provi sion of section 561- A, Cr.P.C. had been
summarized as under:--
"(i) The said provision should ne ver be understood to provide an additional or an alternate
remedy nor could the same be used to override the express provisions of law;
(ii) the said powers can ordinarily be exerci sed only where no provision ex ists in the code to
cater for a situation where the code offers no remedy for the redress of a grievance;
(iii) inherent power can be i nvoked to make a departure from the normal course prescribed by
law only and only in exceptional cases of extraord inary nature and reasons must be offered to
justify such a deviation; and
(iv) in the matter of quashing criminal proceedi ngs, the trial must ordinarily be permitted to
take its regular course envisa ged by law and provision of sect ion 561-A, Cr.P.C. should be
invoked only in exceptional cases fo r reasons to be recorded."
11. It is also settled law that criminal proceedings are not barred in presence of civil
proceedings, thus civil and criminal proceedings can be proceeded simultaneously, a question of
criminal liability cannot be allowed to mix with a breach of civil obl igation, both wrongs being
distinguishable in nature can be initiated at the same time. Reference is made to the following
judgment of the hon'ble Supreme Court of Pakistan:---
Haji Sardar Khalid Saleem v. Muha mmad Ashraf and others 2006 SCMR 1192.
Talib Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177 and Deputy Inspector-
General of Police v. Anees-ur-Rebman Khan PLD 1985 SC 134.
12. If the contents of the petition, the F.I.R. and the arguments advanced by the learned
counsel for the parties were put in juxtaposition, th en it would bring the case of the petitioners in
the area of disputed question of f act, which could not be decided at this stage without leading the
evidence.
The record reveals that after completion of formal investigation, challan has been
submitted against the petitioner, thus, at this st age any interference by this court while exercising
inherent jurisdiction, which can only be exercised in extraordin ary circumstances, would amount
to preempting the powers of the trial Court. Ev en otherwise, the petitioners had alternative
remedy viz. before, the trial Court under Crimin al Procedure Code ("Cr .P.C.") 1898 i.e. Section
249-A, Cr.P.C.
I am mindful of the fact that the petitioners have been admitt ed to protective bail by this
court but they are not ready to surrender before the trial Court, an inference could easily be
drawn that the petitioners are not ready to submit th eir will before the court of law but have tried
to make a clever attempt to deceive the law, therefore, on this ground to o being fugitive of law
are not entitled for the relief claimed.
What emerges from the above discussion is that there is nothing wrong with the
proceedings initiated at the instance of the complainant qua registration of F.I.R.
In view of the matter, finding no substance in this petition the same is dismissed.
However, observation made herein are purely tentative in nature a nd trial Court shall not
be influenced by observation made herein above a nd shall proceed with the matter and decide the
base on its own merits stric tly in accordance with law.
HBT/2/Bal Petition dismissed.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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