Al Haj Jafar Ali Alvi Q VS The State

Judgment Sheet

ISLAMABAD HIGH COURT

ISLAMABAD

Crl. Misc. No. lg-Q I 2OlO

N-HaJ Jafar Ali Alvi Versus The State etc.

Petitioner bg: Mr. Afiah Ahmed Khan Aduocate State by: Rolo Abdul Gluffar, Standlng Counsel Safdar Hussaln ASI Date of leaing: 27-06-207 7 Date of decision: 28-06-207 7

Riaz Ahmad Khan J: Syed Asad Ullah Kazmi on 30-07- 2005, lodged report in Police Stotion Kohsor, stoting therein thot he wos Director of M/s Trode House Ltd. hoving its office of house No.l0-A, Street No.53, F-714, lslomobod. One Al-Hoj Jofor Ali Alvi (present petitioner), who wos representing o compony nomely Busooud & Jofor Troding lmporting Co. LLC opprooched him in conneclion of business. Both the porties ogreed on sole ond purchose of certoin moteriol. Mr. Jofor Ali ogoinst the purchose of different items, issued following cheques

S. No. Cheque Number Amount of Cheque (ln Dirhoms)

I 711 614 36,7501-

5 711 620 65,g0g l-

9 709000 57,500t- r0. 71 1 651 s7,s00t- l1 71 1 652 57,500/-

l3 708912 52,6141- 14 7089.l 3 52,6141- l5 711 653 57,500/-

{} /o

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Al-Haj Jafar Ali Alvi...Vs...The State etc.

16.711 654 57,500t-

17.711 655 57,500t- r8. 715625 30,000/- .l9.

All these cheques were dishonoured, so on the obove soid report, cose FIR No.l92, doted 30-07-2005, under Section 489-F PPC wos registered ogoinst the present petitioner.

2.The petitioner filed on opplicotion under Section 249-A Cr.P.C.

before the leorned llloqo Mogistrote; however, the some wos dismissed vide order doted l9-ll-2009. The petitioner then filed revision petition ogoinst lhe order of dismissol, which wos olso dismissed by the leorned Additionol Sessions Judge, lslomobod on 29-06-2010. Thereofter, lhe present petition under Section 561-A Cr.P.C. wos filed for setting oside the orders of the two Courts below ond quoshing the proceedings pending in the triol Court

3.Leorned counsel for the petitioner contended thot the olleged tronsoction hod token ploce in Al-Ain. The disputed cheques were offered of Al-Ain in the yeor 2003. The cheques were offered on beholf of the Compony ond not by the petitioner in his personol copocity. Furthermore, the comploinont hod inilioted civil os well os criminol proceedings ogoinst the petitioner of Al-Ain. As o result of those proceedings the Civil Courl of Al-Ain hod possed the judgment for poyment of disputed omount olongwith inlerest of the rote of 12%w.e.f.30-09-2003 till the dote of poymenl. The soid order wos bosicolly possed ogoinst the Compony. On criminol side, in

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Al-Haj JafarAli Alvi...Vs...The State etc.

respecl of the disputed cheques, the criminol court of Al-Ain hod possed order ond o sentence for imprisonmenl of two monlhs wos possed ogoinst the petitioner. Leorned counsel for the pelitioner submitted thot the petitioner hod olreody been punished for some offence of Al-Ain ond now the Court of Pokiston hos no jurisdiction to re-odjudicote lhe motter olreody decided. lt wos further contended thot the cose hos been pending since 2005 ond no evidence hos been recorded, so the only object of the comploinont wos to prolong the ogony of petitioner. Leorned counsel for the petilioner conlended thot under Section 188 Cr.p.C., the occused connot be prosecuted wilhoul certificote from the Federol Government ond in the obsence of lhe some certificote, the prosecution is illegol.

4.On the other hond, leorned Stonding Counsel submitted thot the offence hos been committed obrood, the some con be tried in Pokislon. Leorned counsel submitted thot the cheques were dishonoured ond therefore, cose under Section 489-F PPC wos registered ogoinst the occused / petitioner.

5.I hove heord leorned counsel for the porlies ond hove olso perused the record.

6.Admitled posilion in the present cose is thol occurrence hod token ploce ol Al-Ain. The record olso shows thot in respect of the disputed cheques, civil court hod possed on order; the petilioner wos olso tried in lhe Criminol Court.

7.The offences committed outside Pokiston ore deolt with under Section 188 Cr.P.C. For the soke of convenience Section 188 Cr.P.C. is reproduced os below:-

"Liability for offences commitled

oulside Pokisfon. When o citizen of

(ro

4 Crl. Misc. No. l9-e/2010

Al-Haj JafarAli Alvi...Vs...The State erc. Pokisfon commifs on offence of ony ploce without ond beyond the timits of pokiston, or

when o servonf of the Sfote (whether o citizen of pokiston) or not cornrnifs on offence in [o tribot oreo,] or when ony person commifs on offence on ony ship or oircroft regisfered in Pokrston whenever it moy be,

he moy be deolt with in respecf of such offence os if if hod bee n committed of ony p/oce within Pokrsfon of which he moy be found:

Politicol Agenfs lo certify fifness of inquiry inlo chorge. provided thot notwithstonding onything in ony of the preceding secfions of fhis Chopter no chorge os fo ony such offence sho/l be inquired into in Pokisfon unless the potiticot Agent, if there rs one, for the tenitory in which the offence rs olleged to hove been committed, certifies fhof, in his opinion, the chorge, ought to be inquired into in Pokiston; ond, where there rs no potiticot Agent, fhe soncfion of Federot Governmenf sho// be required.

Provided, olso thot ony proceedings foken ogoinst ony person under fhis secfion which would be o bor to

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Al-Haj Jafar Ali Alvi...Vs. '.The State etc.

subsequenf proceedings ogoinsf such person for the some offence n such

offence hod bee n commifted in Pokisfon

sholl be o bor to further proceedings ogoinsf him under the [Extrodition Act, 1972, (XXl of 1972)l in respect of the some

offence in ony territory beyond the limits of

Pokisfon.

L The section hos creoted o condition for the triol of on offence under it, thot the certificote of the Politicol Agent in the oreo in which the offence wos committed or where there is no Politicol Agent, the sonction of the Federol Government should be obtoined. The object of such o provision is to prevent the occused being tried over ogoin in the some offence in two different ploces.

Reference in this respect moy be mode to AIR t934 Sindh 96. Where o person commits on offence outside Pokiston ond is loter on found in Pokiston, there ore two courses open, he con be tried in Pokiston under Section 188 Cr.P.C., if o cose folls within its purview, or he con be orrested ond sent to the ploce where he committed the offence to toke his triol there. This is colled extrodition. As such certificote from the Politicol Agent or from the Federol Government is mondotory for the triol of on offence committed outside Pokiston.

Reference in this respect moy be mode to P L J 2002 ftohorel 433.

9.ln the present cose, no certificote hos been issued by the Federol Government for the prosecution of occused I petitioner' The offence wos ollegedly committed in the yeor 2003; FIR in Pokiston wos registered in the yeor 2005 ond since then the cose hos been pending. The two Courts below hod held thot the

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Al-Haj Jafar Ali Alvi. . Vs. . . The State etc.

occused hod been tried obrood, yet the courts in pokiston hove jurisdiclion. There is no-doubt, the courts in pokiston hove jurisdiction; however for troil of such on offence, certificote from the Federol Government would be required.

10.ln the present cose no sonction of Federol Government for the triol of the occused / petitioner is ovoiloble, so the triol connot proceed. The petition is occordingly occepfed ond the proceedings pending ogoinst the petitioner in the leorned triol Court ore occordingly ouoshed.

(R!AZ AHMAD KHAN)

JUDGE

Asad t(/*.

Appr ov e d .fo r r e p o r t in &

Uploaded By : Engr. Umer Rasheed Dar