The petitioner, through the instant writ petition, seeks issuance of a direction to respondent No.1 to register a criminal case against respondents 2 and 3.
2. The case of the petitioner is that on the instructions of respondent No.2, respondent No.3 had issued a Cheque bearing No.586070, Account No.PLS2474- 2 in the name of Allied Bank, Grain Market Branch, Bahawalpur for Rs.4,00,000 for payment to the petitioner, which had been dishonoured by the Bank due to lack of amount in the account of respondent No.2. The petitioner has annexed an application along with this writ petition, wherein it is stated that one Noor Muhammad Sabir Qureshi who was a property dealer, had introduced the petitioner for purchase of some land and for this purpose he received an amount of Rs.60,00,000 from the petitioner and the said property dealer had not shown the petitioner any land, neither delivered the possession of any property. So, the deal/bargain between the petitioner and the said property dealer was cancelled and Noor Muhammad Sabir Chishti, the said dealer, had executed a pronote dated 14- 10-2000 for payment of Rs.60,00,000 in favour of the petitioner and this amount had not been paid to the petitioner according to the promise, and therefore, the petitioner was constrained to file a civil suit on the basis of pronote. During the proceedings the matter was settled/patched up and the property dealer (Noor Muhammad Sabir Chishti) agreed to make the payment through instalments. Respondent No.2 stood surety/guarantor for the first instalment of Rs.5,00,000 and undertook to make the payment of said amount till 5-1-2002 and on the said date, respondent No.2 approached the petitioner and asked him that respondent No.3 is his nephew and son-in-law, who had his account in the Allied Bank, Grain Market Branch, Bahawalpur. Presently the amount is not available in the account. After one year he will arrange the said amount and as a guarantee, he asked respondent No.3 to issue a cheque to be encashed on 31-1-2003 in favour of the petitioner, which was presented to the Bank but was returned as.
3. From the contents of this application, given by the petitioner to the S.H.O. Concerned, and the contention raised in the writ petition, it reveals that there is -civil dispute between the parties.
According to the version of the petitioner, respondents Nos.2 and 3 were the guarantors. If cheque has not been encashed, the remedy available to the petitioner was of filing a civil suit under B Order XXXVII, rule 1, C.P.C. In the Court of competent jurisdiction. The petitioner has not been deprived of any property or money by respondents Nos.2 and 3.
4. The other aspect of the case is that respondent No3. Has filed a civil suit for the cancellation of the said cheque and that fact was not disclosed by the petitioner in his writ petition. The cheque is subject-matter of the civil suit. The civil Court would adjudicate upon the matter and determine the genuineness or ingenuineness of the cheque. Further mens rea and criminal intention is not established from the circumstances of the case. From the above facts no cognizable offence is made out.
5.The most important feature of the case is that through Criminal Law Amendment Ordinance LXXXV of 2002, published through Gazette Notification dated 25-10-2002, new section 489-F has been inserted in the Pakistan Penal Code, 1860, which is reproduced as under:-- "489-F Dishonestly issuing a cheque.---Whoever dishonestly issues a cheque towards repayment of a loan or fulfillment of an obligation which is dishonoured 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 arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque."
5-A. This Ordinance was enforced by the President of Pakistan in exercise of the powers conferred on him under Article 89 of the Constitution of Pakistan, which envisaged that the President may, except when the National Assembly is in session, if satisfied that the circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require. Sub-clause (a) of sub-Article (2) of Article 89 further provides that (i) before the National Assembly if it (contain provision dealing with all. Or any of matters specified in clause (2) of Article 73, and shall stand repealed at the expiration of four months from the promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution (ii) The Ordinance will become act if it has been laid before the National Assembly through a Bill and if passed by the National Assembly and signed by the President.
6. After expiry of period of four months, the Criminal Law Amendment Ordinance LXXXV of 2002 has died its natural death. No further Ordinance in continuation of the said Ordinance has been promulgated enforced by the President. After General Election, October, 2002 of the National and Provincial Assemblies and taking of oath by the members of Legislature, the Constitution of the country has been revived. All proclamations, President's Orders, Ordinances, Chief Executive's Orders, Laws, regulations, enactments, Notifications, rules, orders or policies enforced immediately before the date on which Article 270-AA of the Constitution comes into force, shall continue in force until altered, repealed or amended by the competent Authority. The above said Criminal Law Amendment was not in force before the date on which Article 270-AA was introduced through the Legal Framework Order, thus, it has no Constitutional and legal protection. Learned counsel for the petitioner when confronted with the above legal position of the case, could not respond neither has been able to advance or produce any other Ordinance in continuance of the Criminal Law Amendment Ordinance LXXXV of 2002.
For the foregoing reasons, this writ petition being misconceived is dismissed. However, the petitioner may avail of alternate remedy available to him under the law.