Faqir Khan Vs Bakhtawar Jan

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.'lu"fgrnent Sficet

PESFIAWAR HIGH COURT, MINGORA BENCH (DAR-UL-QAZA),

SWAT.

JUDICIAL DEPARTMENT

JUDGMENT

W.P.No.603-M12016.

Date of hearins 09/05/2018.

Petitioner (Faqir Khan) By:

lu[/s Shamsher Ali Khan Mirkhankhel & Rashid Alt Khan, Advocates.

Respondent (Bakhtawar Jan) By:

Mr. As ghar Ali, Advocate.

Offic ial Re spondents By :

Mr.Rafique Ahmad, Asstt: A.G.

SHAKEEL AHMAD. J:- Through this writ petition, petitioner Faqir Khan s/o Haji Noorullah Khan by filing this constitutional petition has sought quashment of order dated 23.07 .2016, passed by the leamed Justice of Peace whereby he directed the respondent No.3 to lodge FIR against the petitioner and FIR No.564 dated 18.08.2016 registered at police station Timergara District Lower Dir, for offence under section 489-F PPC against the petitioner at the instance of the respondent No.1.

&1 2. Brief facts for filing of this petition are that the respondent No.1 submitted an application before the

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learned Justice of PeacelZilla Qazi at Dir Payeen at Timergara praying therein to issue an order for registration of FIR against the petitioner for issuing cheques No.XA.06093556 dated 28.02.2016 for an amount of Rs.23,50,000/- of Habib Bank Limited of Pakistan at Mingora in the name of the respondent No.l/complainant on its presentation, the same was dishonoured due to insufficient amount in the account.

3.After receipt of complaint, the learned Justice of Peace sought comments from the police and consequently, vide order dated 23.07.2016 directed the respondent No.3 to lodge FIR against the petitioner in accordance with law. In pursuance of the order of the learned Justice of Peace, case FIR No.564 under section 489-G PPC was registered on 18.08.2016 at police station Timergara wherein the petitioner was nominated as an accused, hence, this petition.

4.It has been argued by the learned counsel for the petitioner that the cheque in question was

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allegedly issued by the petitioner having his account in the Habib Bank Ltd. Square Branch at Mingora,

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District Swat and the said cheque was also dishonoured by the said bank, so the learned Justice of Peace at Timergara had no jurisdiction to entertain the complaint filed under section 22-A Cr.P.C. and registration of FIR in pursuance thereof was totally unwarranted and without jurisdiction;

that the parties are locked in civil litigation and the civil liability has been converted into criminal liability, which is not warranted by law; that the suit for rendition of accounts is subjudice before the court of a competent jurisdiction; that the date of issuance of cheque was tampered by the respondent No.1 with mala fide intentions; that the civil court is competent forum to decide the controversy of issuance of cheque after recording pro and contra evidence, and prayed for quashment of impugned order and FIR in the light of his submissions'

5.As against that, the learned counsel for the respondents contended that after receipt of cheques in dispute, the petitioner deposited the same in his account in Islamic Bank at Timergara; that the ^..) offence under section 489-F was completed at Mingora where cheque in question was dishonoured

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and it was returned with the remarks that the petitioner has insufficient amount in his account, therefore, the consequences of the offence in terms of section 179 CI.P.C. were ensued at Timergara, therefore, the respondent No.l had the option to initiate proceedings against the petitioner under section 489-F PPC at any of the two places; that the order dated 23.07.20L6, passed by the learned Justice of Peace does not suffer from jurisdictional defect, and the FIR was rightly lodged at police station Timergara; that factual controversy is involved in the case, which cannot be resolved in writ jurisdiction; that the investigation is at the initial stage, which could not be quashed at this stage and prayed for dismissal of the writ petition'

6.The learned A.A.G appearing on behalf of the official respondents supported the contentions of the learned counsel for the respondent No'3' We have heard arguments of learned counsel for the parties and scanned the record with their 4 eminent assistance.

7.The moot question which is to be resolved as to whether FIR can be lodged in a police station,

where the bank, which has dishonoured the cheque, is situated? or whether the FIR can be lodged, in the police station where the complainant has deposited the cheque in his own account? In order to resolve the controversy involved in the matter, it will be advantageous to reproduce sections 177, 179 Cr.P.C and sections24 and 489-F PPC.

"177. Ordinary place of inquiry and trial. Every offence shall ordinary be inquired in and tried by a court within the local limits of whose jurisdiction it was committed".

u179. Accused triable in district where act is done or where consequence ensues. When o person is accused of the commission of any offince 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 jarisdiction any such thing hus been done, or any such consequence has ensued.

(a)A is wounded within the local limits of the jurisdiction of Court X, and dies within the local limits of the jurisdiction of Court Z. The offince of the culpable homicide of A may be inquired into or tried byXorZ.

(b)A is wounded within the local limits of the jurisdiction of Court X, and is, during ten days within the local limits of the jurisdiction of Court Y, and during ten days ,-.1 more within the local limits of the jarisdiction of Court Z unable in the local limits of the jurisdiction of either court Y, or court Z, to follow his ordinary pursuits. The offence of causing grievous hurt to A may be inqaired into or tried by X, Y or Z.

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(c)A is put in fear of injury within local limits of jurisdiction of court X, and is thereby induced, within the local limits of the jurisdiction of Court Y, to deliver property to the person who put him in fear. The offence of ertorfion committed on A may be inquired into or tried either by X or Y".

u24. uDishonestly". Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing "dishonestly".

"489-F. Dishonestly issuing a cheque.- ll/hoever, dishonestly issues a cheque towards repayment of a loan orfuffillment of an obligation which is dishonoured on presentation, shall be punishable within imprisonment which may exlend to three years, or with line, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheqae".

Expression "Ensue" has been defined in Blacks Law Dictionary; to follow after; to follow in order or train of events. A plain reading of section 179 Cr.P.C and illustrations (a) (b) (c) referred to above indicates that when any person commits any offence or do some act and due to that act any consequence ensue, such offence can be inquired into or tried by the court where act done or

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consequence ensued. Reference in this behalf may be made to the case reported as Basharat Iqbal Vs.

The State (1993 P.Cr.L.J. 2l5l) In the present

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case, the complainant deposited cheque in question in Islamic Bank at Timergara Branch on 11.03.2016, where he has account, said cheque was dishonoured due to insufficient amount in the account. The case FIR No.564 was registered on the application of the complainant on which the Zilla QazilJustice of Peace District Dir Payeen at Timergara gave direction of registration of case. Bare reading of section 179 Cr.P.C. indicates that the cheque of IIBL Square Branch, Mingora was presented at Islamic Bank Timergara and the same was dishonoured. The moment the cheque was dishonoured, the offence was completed at Mingora but, the complainant came to know about commission of offence i.e. dishonour of cheque at Timergara from Islamic Bank at Timergara where he has his account in which he has deposited the cheque in dispute. The offence under section 489-F PPC was completed at Mingora where the cheque in question was dishonoured. However, the consequences of the offence in terms of section 179

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Cr.P.C were ensued at Timer5ffid, therefore, the complain tl dr aw er I respondent No. 3 rightly submitted

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complaint under section 22-A Cr.P.C. before the learned District Judge/Justice of Peace Dir Payeen at Timergara and in pursuance of his order the impugned FIR was validly lodged at police station Timergara. There is no legal impediment or prohibition on the complaint/drawer in this regard. It is his option or choice, he can initiate criminal proceedings under section 489-F any of two places, hence, we are of the view that both the police stations Mingora and Timergara have got jurisdiction to lodge FIR.

8.Now adverting to the 2nd contention of the learned counsel for the petitioner that the parties are locked in civil litigations, therefore, initiation of criminal proceedings is illegal. This contention of the learned counsel for the petitioner has got no force because it is now settled that civil and criminal proceedings can be proceeded side by side. There is no bar on the initiation of criminal proceedings in presence of a civil suit. In this behalf reference may

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be made to the cases reported as Muhammad Shafi Vs. DSP others (PLD 1992 Lahore 172) and

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Malik Naeem Awan Vs. Malik Aleem Maiad and 5 others (PLD 2008 Lahore 358).

g. Disputed question of facts are involved in the matter, which cannot be resolved in the constitutional jurisdiction. In this respect we are fortified by the judgment in the case of Col. Shah Sadiq Vs. Muhammad Ashiq (2006 SCMR 276).

Likewise in the case of ue Bibi Vs.

Muhammad Sharif and others (2006 SCMR 512) the Hon'ble apex court held that disputed questions of fact could not be gone into proceedings under Article 199 of the constitution of Islamic Republic of Pakistan, 1973. Reference can be made to the case of Fareed and othe v. The State (2003 SCMR 839) in this regard.

10.For what has been discussed above, we find that the petition in hand is bereft of merit, therefore, the same is herebY dismissed. )

JADGE

'a,N--d!

Announced. J(IDGE Dt.09/05/2018.

HON'BLE IVtrI.JUSTICE MOHAMMAD IBRAHIM KIIAN & HOX',nr,B N,m..rustrcE srraxmr, ^q.rilvrAn.

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