Najib Ullah Vs Akbar Zada & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

W.P No. 1246-M/2025

(Najib Ullah Versus Akbar Zada and others)

Present:

Mr. Bakht Faqir Shah and Ms. Mehnaz, Advocates for petitioner.

Nemo for respondents the case being in motion.

Date of hearing: 11.03.2026

JUDGME NT

QAZI JAWAD EHSANULLAH, J.- Through the instant Constitutional Petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 read with section 561-A, Cr.P.C., the petitioner has called in question order dated 01.08.2025 passed by the learned Additional Sessions Judge/Justice of Peace, Khwaza Khela, District Swat, whereby his application under section 22-A, Cr.P.C. seeking directions for registration of an FIR against respondent No.1 Akbar Zada was dismissed on the ground that no cognizable offence was made out and that the controversy involved disputed questions of fact predominantly of a civil nature.

2.The precise facts of the case are that petitioner Najeeb Ullah is stated to be carrying on the business of bargain at Khwaza Khela, District Swat. According to him, an amount Tajamul/CS* (D.B) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

of Rs.15,850,000/- was outstanding against one Abdur Rashid son of Abdul Karim. It is his case that respondent No.1, Akbar Zada, assumed responsibility for payment of the said liability on behalf of Abdur Rashid and, to that effect, a written agreement bearing No.112 dated 28.10.2024 was executed between them.

In partial discharge of the liability, respondent No.1 allegedly handed over a vehicle valuing Rs.5,000,000/-, paid Rs.1,500,000/- in cash and further issued Cheque No.2492303183 dated 28.04.2025 of the Allied Bank for an amount of Rs.4,680,000/-. The petitioner asserted that despite repeated assurances, the cheque, when presented for encashment on 18.06.2025, was dishonoured on account of insufficient funds. He further maintained that respondent No.1 thereafter denied payment of the amount covered by the cheque, thereby committing an offence punishable under the law.

3.The petitioner initially approached the SHO, Police Station Khurshid Khan Shaheed, Khwaza Khela, through an application seeking registration of a criminal case against respondent No.1. Upon failure of the police to take action, he invoked the jurisdiction of the learned Justice of Peace, Khwaza Khela, District Swat, by filing an application under section 22- A, Cr.P.C, praying for issuance of directions to the police for registration of an FIR. The learned Justice of Peace called for comments from the police authorities and, after hearing the Tajamul/CS* (D.B) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

parties, dismissed the application vide order dated 01.08.2025.

The learned Justice of Peace observed that the record revealed existence of an earlier compromise decree dated 14.06.2024 obtained by the petitioner against Abdur Rashid and that respondent No.1 had subsequently entered into an agreement dated 28.10.2024 regarding the outstanding liability. It was further noted that, according to the police report, respondent No.1 had already discharged the liability before presentation of the cheque and that the matter regarding the nature and adjustment of payments raised disputed questions of fact.

Holding that the controversy was essentially of a civil nature and that no cognizable offence was prima facie disclosed from the contents of the application, the learned Justice of Peace declined the request for registration of an FIR and dismissed the application. Aggrieved therefrom, the petitioner has instituted the instant constitutional petition.

4.Arguments heard and record perused.

5.At the outset, it may be observed that the jurisdiction of the Justice of Peace under section 22-A, Cr.P.C.

is neither mechanical nor intended to be exercised for directing registration of an FIR in every case brought before him. The object of such proceedings is confined to examining whether, on the basis of the allegations presented, a cognizable offence is Tajamul/CS* (D.B) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

prima facie disclosed. Where the controversy is predominantly civil in nature, dependent upon determination of disputed questions of fact and rival claims requiring recording of evidence, the criminal process cannot be set in motion merely on the application of one of the parties.

6.In the present case, the record reveals that the genesis of the dispute lies in an outstanding financial liability allegedly owed by Abdur Rashid son of Abdul Karim to the petitioner. Admittedly, respondent No.1 Akbar Zada was not the original debtor; rather, according to the petitioner himself, respondent No.1 subsequently assumed responsibility for payment of the said liability through agreement No.112 dated 28.10.2024. It is further an admitted position that substantial payments were statedly made under the arrangement, including delivery of a vehicle valuing Rs.5,000,000/- and cash payment of Rs.1,500,000/-. The main controversy between the parties is whether the amount represented by Cheque No.2492303183 dated 28.04.2025 amounting to Rs.4,680,000/- remained outstanding or had already been satisfied before presentation of the cheque. This controversy is founded upon competing factual assertions of the parties and cannot be resolved without a full- fledged inquiry and appraisal of evidence.

Tajamul/CS* (D.B) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

7.A significant aspect of the case, which has rightly weighed with the learned Justice of Peace, is the petitioner's own stance regarding the payments allegedly made by respondent No.1. The police report reflected the defence of respondent No.1 that the liability represented by Cheque No.2492303183 dated 28.04.2025 had already been discharged before its presentation. In response thereto, the petitioner himself pleaded that the amount paid by respondent No.1 did not pertain to the cheque liability; rather, it was money remitted by the original debtor Abdur Rashid from abroad through respondent No.1. Thus, the very foundation of the controversy revolves around the nature, source and adjustment of the payments admittedly exchanged between the parties.

Determination as to whether the amount allegedly paid by respondent No.1 was in satisfaction of the cheque amount or was payment towards some independent liability of Abdur Rashid necessarily requires recording of evidence and resolution of disputed questions of fact. Such an inquiry is foreign to proceedings under section 22-A, Cr.P.C, wherein the Justice of Peace is not expected to adjudicate upon rival claims arising out of contractual and monetary transactions. Once the controversy itself hinges upon accounting and adjustment of payments allegedly made on behalf of a third person namely Abdur Rashid, and the parties are at variance regarding the Tajamul/CS* (D.B) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

purpose for which such payments were made, the dispute clearly travels into the realm of civil rights and obligations. In such circumstances, the learned Justice of Peace was fully justified in declining to direct registration of an FIR merely to facilitate resolution of a disputed monetary claim through criminal process. It is by now a settled principle of law that criminal proceedings cannot be permitted to be used as a lever for enforcement of disputed civil claims or recovery of money.

Where the real controversy pertains to enforcement of contractual obligations and settlement of accounts, recourse must ordinarily be had to the appropriate civil remedies provided by law. Equally settled is the principle that State machinery cannot be invoked for harassment of the opposite party or for securing an advantage in a private monetary dispute.

8.The learned Justice of Peace, after examining the contents of the application, the comments submitted by the police and the nature of the transaction between the parties, reached the conclusion that no cognizable offence was prima facie made out and that the controversy involved disputed factual issues of a civil nature. The said conclusion is fully supported by the material available on record and does not suffer from any jurisdictional defect, legal infirmity or material Tajamul/CS* (D.B) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

irregularity warranting interference in constitutional jurisdiction.

9.Consequently, finding no illegality in the impugned order dated 01.08.2025 passed by the learned Justice of Peace, the instant petition is devoid of merit and is accordingly dismissed in limine.

Announced Dt:11.03.2026 -Sd-

JUDGE

-Sd-

JUDGE

Tajamul/CS* (D.B) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah