P L D 2010 Lahore 60

Before Raja Muhammad Shafqat Khan Abbasi, J

MAZHAR HUSSAIN---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No.3873 of 2008, heard on 3rd June, 2009.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 177 & 179---Penal Code (XLV of 1860), S.489-F---Constitution of

Pakistan (1973), Art.199---Constitutional jurisdiction---Scope---Quashing of F.I.R.---
Petition for---Complainant got registered F.I.R. at Police Station "F.S", district `S' against
petitioner/accused--Accused had contended that F.I.R. registered at Police Station "F.S"
was without jurisdiction as disputed cheque was issued from the Bank at place `A' in
district "B" and cheque in dispute. was also dishonoured by said Bank; and that
registration of F.I.R. by Police Station at place "F.S" was totally unwarranted and without
jurisdiction---Police after investigation, submitted report under S.173, Cr. P. C. in which
it was found that F.I.R. had been registered without jurisdiction and was liable to be
cancelled---Magistrate disagreed with said report and took cognizance of the case---
Validity---Complainant deposited cheque in question in Bank at place 'F.S' district `S'
where he had his account and cheque was dishonoured---The moment (the cheque was
dishonoured offence was completed at place `A' in district `B', but complainant came to
know about dishonour of cheque at district `S' where he had his account in which he had
deposited the cheque in dispute---Offence under S.489-F, P.P.C. was completed at place
"A" where cheque in question was dishonoured---However, consequences of the offence
in terms of S.179, Cr. P. C. were ensued at place 'F.S' district `S'---Complainant/Drawee
had validly lodged the impugned F.I.R. at place 'F.S' at district `S'---No legal bar or
prohibition existed on complainant/drawee in that regard; it was his option or choice, he
could initiate criminal proceedings under S.489-F, P.P.C. at any of the two places---Both
Police Stations at place `A' and 'F.S'. had got jurisdiction to lodge F.I.R.-
Complainant/drawee opted to lodge F.I.R. in Police Station at place `F.S. where Bank was
situated and where he deposited the cheque in question---Police Station at place F.S. was
competent to conduct inquiry/investigation in the matter---Impugned F.I.R. could not be
quashed merely on sole ground that same had not been registered within the jurisdiction
where cheque was dishonored---Discretionary jurisdiction could not be exercised in
favour of the petitioner/accused as constitutional jurisdiction was meant for aid of justice
and not for the illegal gains---Case was at the initial stage, which could not be quashed at
that stage which would amount to deflecting or short-circuiting the normal ordinary
procedure provided under the law---Even otherwise disputed question of fact being
involved in the matter, same could not be resolved in constitutional jurisdiction of High
Court.

Col. Shah Sadiq v. Muhammad Ashiq 2006 SCMR 276; Rafique Bibi v. Muhammad
Sharif and others 2006 SCMR 512 and Seema Famed and others v. The State 2008
SCMR 839 ref.

(b) Words and phrases---

----'Dishonesty'-Defined and explained.

(c) Words and phrases---

---- `Dishonestly'---Defined and explained.

(d) Words and phrases---

----`Loan'---Defined and explained.

(e) Words and phrases---

---`Finance'---Defined and explained.

(f) Words and phrases---

---'Obligation'---Defined and explained.

(g) Words and phrases---

---`Ensue'---Defined and explained.

(h) Administration of justice---

----No bar on initiation of criminal proceedings in presence of civil suit---Civil and

criminal proceedings could be proceeded side by side.

Muhammad Shafi v. DSP and others PLD 1992 Lah. 178 and Malik Naeem Awan v.
Malik Aleem Majad and 5 others PLD 2008 Lah. 358 rel.

(i) Criminal Procedure Code (V of 1898)---

----S.179---Place of inquiry and trial---When any person would commit offence or

do some act and due to that act any consequence would ensue, such offence could be
Inquired into and tried by the court, where act was done or consequence ensued.

Basharat Iqbal v. The State 1993 PCr.LJ 2151; Muhammad Zafar v. Zahoor PLD
1983 FSC 480 and Shaukat Ali v. District Police Officer, Burewala District Vehari
and 2 others 2007 PCr.LJ 997 ref.

Syed Muzammil Hussain Bukhari for Petitioner.

Mian Abbas Ahmad Addl. A.-G. for Respondents.

Date of hearing: 3rd June, 2009.

JUDGMENT

RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J. ---Through this writ

petition, petitioner, namely, Mazhar Hussain son of Mehdi Hussain, by filing this
constitutional petition has sought quashing of F.I.R. No. 378/2006, dated, 5-12-
2006, registered with Police Station Fateh Sher, Sahiwal, for offence under section
489-F, P.P.C. against the petitioner at the instance of respondent No.3/Shan-e-Raza.

2. Brief facts for filing of this petition are that case F.I.R. No.378 dated 5-12-2006
under section 489-F, P.P.C. has been got registered at Police Station Fateh Sher,
District Sahiwal by the respondent No.3. According to the prosecution story the
petitioner issued a Cheque No.571014 dated 15-9-2006 for an amount of
Rs.4,00,000 of National Bank of Pakistan Ahmadpur East, District Bahawalpur in
the name of Shan-e-Raza respondent No.3/complainant on its presentation, the same
was dishonoured, so the petitioner has committed fraud with the respondent No.3
whereupon complainant/respondent No.3 lodged above F.I.R. at Police Station,
Fateh Sher, Sahiwal where complainant/Drawee has deposited the cheque in
question in the Muslim Commercial Bank.

3. It is stated that F.I.R. registered at P.S. Fateh Sher under section 489-F, P.P.C. on
5-12-2006 was without jurisdiction. According to the learned counsel the disputed
cheque was issued by Bilal Cotton Factory Ahmadpur East having their Account No.
10857 in National Bank of Pakistan, Katchery Road, Ahmadpur East and said
cheque was also dishonoured by the said Bank so registration of the F.I.R. by P.S.
Fateh Sher was totally unwarranted and without jurisdiction. After investigation the
report under section 173, Cr.P.C. was submitted by the police in which it was found
that this F.I.R. has been registered without jurisdiction and is liable to be cancelled.
The Investigating Officer report was verified by the DSP/SDPO Circle, Sahiwal but
learned Magistrate while disagreeing with the said report only mentioned that I do
hereby take the cognizance of this case.

4. Learned counsel for the petitioner contended that respondent No.3 has lodged the
impugned F.I.R. with the mala fide intention and local police has rightly cancelled
the case as P.S. Fateh Sher District Sahiwal has no jurisdiction as no offence has
been committed within the jurisdiction of P.S. Fateh Sher; that civil litigation
between the parties is pending and the complainant has lodged the present F.I.R.
with mala fide. Learned Magistrate has not applied his independent judicial mind
while passing the impugned order.

5. Arguments heard. Record perused.

6. Whether F.I.R. can only be lodged in a police station, where the bank, which has
dishonoured the cheque, is situated? Or whether the F.I.R. can be lodged, in the
police station, where complainant has deposited the cheque in his own account? In
order to understand the controversy involved in the matter, it will be appropriate to
have a glance at sections 177,179, Cr.P.C. Rule 25 (34) of the Police Rules, sections
24 and 489-F, P.P.C.

"177. Ordinary place of inquiry and trial .--Every offence shall ordinarily be
inquired into and tried by a Court within the local limits of whose
jurisdiction it was committed.

179. Accused triable in district where act is done or where consequence

ensues .--When a person is accused of the commission of offence by reason of
anything, which has been done, and of any consequence, which has ensued
such offence, may be inquired into or tried by a Court within the local limits
of whose jurisdiction any such thing has been done, or any such consequence
has ensued.

Illustrations

(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 offence of the
culpable homicide of A may be inquired into or tried by X or Z.

(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 more within the local limits of the jurisdiction 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 inquired into or tried by X, Y or Z.

(c) A is put in fear of injury within the local limits of the 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
extortion committed on A may be inquired into or tried either by X or Y.

(d), A is wounded in the State of Junagadh and dies of his wounds in Karachi.
The offence of causing A's death may be inquired into and tried in Karachi.

Rule 25.3 of the Police Rules, 1934.

When the occurrence of a cognizable offence in another police station

jurisdiction is reported, the fact shall be recorded in the daily diary and
information shall be sent to the officer in charge of the police station in the
jurisdiction of which the offence was committed. Meanwhile all possible
lawful measures shall be taken to secure the arrest of the offender and the
detection of the offence.

Rule 25.3 of the Police Rules, 1934.

 (1) If a police officer after registering a case and commencing an
investigation discovers that the offence was committed in the jurisdiction of
another police station he shall at once send information to the officer
Incharge of such Police Station.

(2) Upon receipt of information such officer shall proceed without delay to
the place where the investigation is being held and undertake the
investigation.

PAKISTAN PENAL CODE:

"24. `Dishonestly' 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 .--Whoever dishonestly issues a cheque

towards re-payment of a loan or fulfilment of an obligation which is
dishonoured on presentation, shall he punishable with imprisonment which
may extend to three years; or with fine, or with both, unless 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 cheque.

In The Law Lexicon edited by Justice Y.V. Chandranchud, at page 567 "dishonestly"
defined as "giving" the ordinary meaning the word "dishonestly" means
"dishonesty". It further elaborates dishonestly as disposition to lie, cheat, deceive, or
defraud; untrustworthiness, lack of integrity. Lack of honesty, probity or integrity in
principle; lack of fairness and straightforwardness, disposition, to defraud, deceive
or astray.

In the case Maj (Retd.) Javed Inayat Khan Kiyani v. The State (PLD 2006 Lahore
752), my learned brother Syed Shabbar Raza Rizvi J., has dealt with this issue in
detail in paragraph 11, wherein discussing the comparison between section 489-F,
P.P.C. and section 20(4) of the Financial Institutions (Recovery of Finance)
Ordinance 2001, his lordship observed that language in both the enactments is same.
The word "loan" is substituted in Pakistan Penal Code with word "finance".
Similarly, punishment of one year is substituted with three years. "Objective to
legislate section 20(4) of Financial Institutions (Recovery of Finance) Ordinance,
2001, was different than objective to legislate section 489-F P.P.C. but section 489-F
P.P.C. had not been legislated/drafted differently Section 489-F P.P.C. has been lifted
from section 20(4) of the Financial Institution (Recovery of Finance) Ordinance,
2001. Purpose of enacting said laws was to provide speedy measures for the
recovery of outstanding loans and finances. In case cited above, while confirming
pre-arrest bail granted to the accused, this Court defined the word "dishonestly" as
under;--

"A person can be said to have dishonest intention if in taking property it is

his intention to cause gain, by unlawful means of the property to which the
person so gaining is not legally entitled or to cause loss by wrongful means
of property to which the person so losing is legally entitled".

Word "loan" has neither been defined in Pakistan Penal Code nor in the Financial
Institutions (Recovery of Finance) Ordinance, 2001. Word "finance" is defined in
section 2(d)(iv) of the Financial Institutions (Recovery of Finance) Ordinance 2001.
"Finance" also includes "loan', which means, Advance, Cash Credit, Over Draft,
Packing Credit, a bill discounted and purchased or any other financial accommodation
provided by a financial institution to a customer. "Loan" according to Wharton's Law
Lexicon is anything lent or given to another on condition of return or payment. The
word `obligation" is defined in Oxford Dictionary as "the state of being forced to do
something because it is your duty, or because of law'. (Oxford Advance Learner's
Dictionary 7th Edition, page 1045). According to Law Lexicon, "obligation" means
a duty, the bond of legal necessity which binds together two or more determinate
individuals, an act which binds a person to some performance, a binding or state of
being bound in law; an act by which a person becomes bound to another or for
another, or to forbear something etc. (The Law Lexicon edited by Y.V. Chandrachud,
page 1335). Similarly word, "obligation' has been defined in Black's Law Dictionary
as a legal or moral duty to do or not do something.

Expression "Ensue" has been defined in the Black's Law Dictionary; to follow after;
to follow in order or train of events.

7. The contention of the petitioner that during the pendency of the civil suit criminal
proceedings cannot be initiated does not have any force because it is well settled
law that civil and criminal proceedings can be proceeded side by side. There is no
bar on the initiation of criminal proceeding in presence of a civil suit. I am guided
by Full Bench judgment of this Court reported as Muhammad Shafi v. DSP and
others (PLD 1992 Lahore 178), Malik Naeem Awan v. Malik Aleem Majad and 5
others (PLD 2008 Lahore 358).

8. Bare reading of section 179, Cr.P.C. and illustrations (a)(b)(c) referred 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 consequence ensue. Reference can be made to the case of
Basharat Iqbal v. The State (1993 PCr.LJ 2151) wherein it was held:--

Muslim Family Laws Ordinance (VIII of 1961)--

"S.6(5)---Criminal Procedure Code (V of 1898), Ss. 177, 179 & 561-A---

Quashing of proceedings for alleged want of jurisdiction in the Trial Court---
Complainant (first wife) was admittedly residing at Lahore---Offence alleged
against the accused in the complainant was of second marriage which was
solemnized at Hyderabad but its consequence had ensued at Lahore as well
as where the first wife was residing---Court at Lahore, therefore, had the
jurisdiction to try the complaint---petition for quashing of proceedings in the
complaint pending in the Court of Illaqa Magistrate, Lahore, was dismissed
accordingly."

In another case of Muhammad Zafar v. Zahoor 1983 PSC957 = PLD 1983 FSC 480
it was also held as under:--

Criminal Procedure Code (V of 1898)---

"Ss.177 and 180, Illustration (C) 53. read with Zina (Enforcement of
Hudood) Ordinance (VII of 1979) Ss. 10(3), 11---Offence of Zina
abduction---Trial of---Jurisdiction of Court---Offence of abduction
committed at place K, while offence of Zina allegedly committed at place
B---Trial Court at place K---Held: Contention that Court had no jurisdiction
to try for offence of Zina, repelled---Held: Court at place K had jurisdiction
to try for the both offences and was wrong in holding that he had no
jurisdiction---Held further; infirmity in trial at place K if any could have
cured by section 537 of Cr.P.C."

Judgment cited by the learned counsel for the petitioner i.e. Shaukat Ali v. District
Police Officer, Burewala District Vehari 2 others (2007 PCr.LJ 1997) is not applicable to
the facts and circumstances of the case. In that case, cheque was issued by the petitioner
prior to the insertion of section 489-F P.P.C. in the Statute.

9. In the present case, the complainant deposited cheque in question in the MCB Sahiwal,
where he has account, said cheque was dishonoured due to closure of the bank account.
The case F.I.R. No.378 was registered on the application of the complainant, on which
the Addl. Sessions Judge/Ex Officio Justice of Peace, Sahiwal gave direction of
registration of the case. Bare reading of the section 179 Cr.P.C. indicates that although
cheque of NBP, Ahmadpur Shariqa, Bahawalpur was presented at Sahiwal and the same
was dishonoured. The moment the cheque was dishonoured offence was completed at
Ahmad Pur East but complainant came to know about commission of offence i.e.
dishonour of cheque at Sahiwal from the Muslim Commercial Bank, where he has his
account -in which he has deposited the cheque in dispute. Offence under section 489-F
was completed at Ahmadpur East, where cheque in question was dishonoured by the
National Bank of Pakistan, Ahmadpur East, Bahawalpur Branch. However, consequence
of the offences in term of section 179 Cr.P.C. were ensued at Sahiwal, hence,
complainant/Drawee has validly lodged the impugned F.I.R. at Sahiwal. There is no legal
bar or prohibition on complainant/Drawee in this regard. It is his option or choice, he can
initiate criminal proceeding under section 489-F any of two places, hence, I am of the
view that both police stations of Ahmadpur East and Fateh Sher, Sahiwal have got
jurisdiction to lodge F.I.R. Complainant/Drawee opted to lodge the F.I.R. in police station
Fateh Sher, Sahiwal where MCB Bank is situated and where he deposited the cheque in
question. Fateh Sher Police Station was competent to conduct inquiry/investigation in the
matter. The impugned F.I.R. cannot be quashed merely on the sole ground that the same
has not been registered within the jurisdiction where cheque was dishonoured. Rules
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 police officer shall send the
information of the case to the Officer Incharge of the such police station. Local police
instead of cancelling the F.I.R. they should have transmitted the case to the relevant
police station. It cannot be the sole ground for cancellation or quashment of the F.I.R. It
will be too technical knock out of the complainant/Drawee which is not at all the object
of 489-F. Object of section 489-F, P.P.C. was to discourage the giving of cheque with
dishonest intention. Legislature despite availability of civil remedy under Order XXXVII,
C.P.C. has inserted this offence in the Penal Code---in order to provide protection to
Drawee against the drawer who gave cheque for the repayment of loan or obligation with
dishonest intention in order to cheat, defraud or to cause wrongful loss of the
complainant. Drawee cannot be made to suffer merely that he has not initiated criminal
proceedings at the place of drawer, where cheque was dishonoured. Offence under
section 489-F, P.P.C. is not meant to try the bank or its officer, who issued dishonour slip.
It is the accused/drawer, who gave cheque with dishonest intention. Learned Magistrate
after going through the cancellation report submitted by the police has rightly disagreed
with the same. Even otherwise, order passed by the Magistrate is administrative in nature
and the same cannot be challenged in writ jurisdiction.

10: Disputed question of facts are involved in the matter, which cannot be resolved in the
constitutional jurisdiction. I am fortified by the dictum laid down in the case of Col. Shah
Sadiq v. Muhammad Ashiq (2006 SCMR 276) wherein it was held that

"High Court had no jurisdiction to quash F.I.R. by appreciation of documents

produced by the parties without providing chance to cross examine or confronting
the documents in question. High Court would error in law to short circuit the
normal procedure of law as provided under Criminal Procedure Code 1898. Party
seeking the quashing of F.I.R. had alternative remedy to raise objection at the time
of framing the charge against them by the trial Court or at the time of final
disposal of the trial after recording the evidence---Said party had more than one
alternative remedies before the trial Court under section 265-K & 249-A, Cr.P.C.
or to approach the concerned Magistrate for cancellation of the case under the
provisions of Cr.P.C."

Likewise, in the case of Rafique Bibi v. Muhammad Sharif and others (2006 SCMR 512),
the Honourable 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 also be made to the case of Seema Fareed and others v. The State (2008
SCMR 839) in this regard.

11. I am not inclined to exercise discretional jurisdiction in favour petitioner as

constitutional jurisdiction is meant for aid of Justice and not for the illegal gains. Case is
at the initial stage, which cannot be quashed at this stage, which will amount to deflecting
or short-circuiting the normal ordinary procedure provided under the law. Petitioner is at
liberty to take all these pleas before the proper forum.

12. Resultantly, I find no occasion to interfere in the matter at this stage. This petition
being meritless is hereby dismissed.
H.B.T./M-683/L Petition dismissed.
2006 Y L R 23

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD BAKHSH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2708 of 2005, decided on 13th October, 2005.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), 5.489-F---Pre-arrest bail, refusal of--Issuance

of cheque in question, presentation of same before concerned Bank and its dishonour,
were admitted facts---Accused had failed to point out any mala fide or ulterior motive
on the part of prosecution to falsely involve him in the case-Bail petition of accused
was dismissed, in circumstances.

Ch. M. Zulfiqar Ali Chheena for G Petitioner.

Mubashar Latif Gill, A.A.-G.

Malik Muhammad Tariq Rajwana for the Complainant.

Miss Zahida Batool for the State.

Ghulam Muhammad, S.I.

ORDER

MUHAMMAD NAWAZ BHATTI, J.---Petitioner has sought his pre-arrest bail in case
F.I.R. No.183 of 2005 dated 30-6-2005 registered under section 489-F, P.P.C. on the
complaint of Ghulam Qasim at Police Station Chehlyak, District Multan.

2. Precisely the allegation against the petitioner as per prosecution story is that he issued
a cheque in favour of the complainant amounting to Rs.15,00,000 (Rupees fifteen lac
only), which was presented before the concerned Bank and the same was dishonoured.
Hence, this case.

3. Learned counsel for the petitioner submits that petitioner is innocent and has falsely
been implicated in the case due to mala fide intention and ulterior motive; that offence
against the petitioner does not fall within prohibitory clause; that the disputed cheque was
issued and presented at District Lodhran and case could not be registered regarding the
same transaction at Multan. Further submits that dispute between the parties is of civil
nature and the petitioner got sanctioned the mutation after payment of entire amount.

4. On the other hand learned counsel appearing on behalf of the State assisted by learned
counsel for the complainant has vehemently opposed the bail petition and submits that
the petitioner has not joined the investigation after dismissal of his bail from the Court of
first instance and the disputed cheque was presented in Bank of Punjab, MDA Branch at
Multan.

5. Arguments heard. Record perused.

6. Issuance of cheque and presentation for the same before the concerned bank and also
its dishonour are the admitted facts. So far as the contention of learned counsel for the
petitioner that cheque was issued and dishonoured from the concerned bank at District
Vehari is concerned, it has been clearly shown that the disputed cheque was presented in
the Bank of Punjab, M.D.A. Chowk Branch at Multan and in this way case was also
registered at Multan. Petitioner has failed to point out any mala fide or ulterior motive on
the part of prosecution that as to why he has been falsely involved in the case.

7. Resultantly the instant bail petition fails and the same is hereby dismissed.

H.B.T./M-1380/L Petition dismissed.