' MUHAMMAD MUZAMMAL KHAN, J.--- This judgment proposes to decide four constitutional petitions, one in hand and three others i,e, Writ Petitions Nos.11088, 11089 and 11090 of 2004, as all these involve similar question of law/facts, require interpretation of same provisions of law, are directed against the same set of respondents except respondent No, 2 in each case who are complainants of four different criminal cases registered on their complaints which are sought to be quashed through these petitions.
2. Briefly facts of petition in hand are that Mst. Shahida Iqbal/respondent No, 2 got a criminal case registered vide F.I.R. No, 500 dated 22-6-2004 under section 489-F, P.P.C. With Police Station Civil Lines, Lahore, against the petitioner with the allegations that the petitioner issued three cheques in the year 1997 in favor of the complainant for the sum of Rs,4,00,000, Rs,1,50,000 and Rs,4,00,000 respectively which were dishonoured by the Drawee Bank on presentation. Quashment of the case was prayed on the ground that complainant on 8-5-1996 entered into irrevocable agreement of sale a piece of land measuring 5 Kanals for a consideration of Rs,10,00,000 and received a sum of Rs,50,000 as earnest money through a cheque which was duly encashed and for the balance amount of Rs,9,50,000, the cheques in question were given as security. According to the petitioner, these cheques were to be presented for encashment at the time of completion of transaction of sale, as per clause (vii) of the agreement between them and that complainant had already filed a suit for recovery of amount under Order XXXVII, rule 1, C.P.C. It was emphasized that the petitioner had always been ready and willing to perform his part of contract but the complainant failed to discharge her obligations. It was claimed that the dispute inter parties, was of civil nature and a suit for specific performance had already been filed by the petitioner which was pending adjudication, in appeal but this case was got registered out of malice to avoid liability under the agreement to sell, as during the currency of agreement, complainant illegally/unauthorizedly had executed sale-deed of the land subject of the agreement in favor of third party i,e, Muhammad Salim Bhatti, complainant of F.I.R. No, 372 dated 17-6-2004 and despite the fact that the petitioner had committed no cognizable offence. It was also asserted that offence charged was not punishable in 1996/97 and besides it, no offence in terms of section 489-F, P.P.C. Was made out because the cheques were wrongly presented to the drawee bank, without completion of transaction of sale.
' Succinctly facts as deciphered from Writ Petition No, 1188/Q of 2004 are that Muhammad Salim Bhatti/respondent No, 2 therein, got a criminal case registered vide F.I.R. No, 372, dated 17-6-2004 under sections 406, 420, 468, 471, P.P.C. With Police Station Satto Katla, Lahore, against the petitioner complaining that the petitioner entered into an agreement to sell of land measuring 9 Kanals and 11 Marlas on 23-5-2003 for a consideration of Rs,55,00,000 and received a sum of Rs,15,00,000 as earnest money through pay order drawn on Bank Alfalah, Lahore but despite repeated requests, he failed to get transaction completed, as per agreement. According to the complainant, it revealed to him that owner of the land had already cancelled her power of attorney in favor of petitioner and that petitioner had no right to enter into the agreement with regard to land measuring 9 Kanals, 11 Marlas that did not vest in him. Quashment was prayed on the grounds that the dispute, if any, was of civil nature and no cognizable offence was committed. The petitioner claimed that he had been ready and willing to perform his part of contract but the complainant failed to discharge his obligations under the agreement within the time prescribed. The petitioner asserted that the owner of the land Mst. Shahida Iqbal had entered into an agreement to sell of 5 Kanals of land besides executing power of attorney in his favor and he owned rest of the land measuring 4 Kanals, 11 Marlas vide Mutation No, 22566, dated 24-12-1985 revived on 25-5-2004 on the basis of which agreement to sell in question was correctly executed by the petitioner. Complainant was said to have filed a suit for specific performance of the agreement dated 23-5-2003 in his favor which was reported to be pending before the Civil Court at Lahore, pending which complainant and Mst.
Shahida Iqbal who had executed irrevocable agreement and power of attorney in favor of the petitioner, were said to have colluded and a sale-deed of the same 5 Kanals was executed by Mst.
Shahida in favor of complainant/respondent No, 2, despite contrary direction by the Civil Court, cognizant of the petitioner's suit against Mst. Shahida Iqbal and, thus, registration of criminal case was asserted to be in violation of section 154, Cr.P.C. And in abuse of process of law.
' Facts of Writ Petition No, 11089/Q of 2004 are that the petitioner issued three cheques in the year 1996 in favor of Muhammad Iqbal Sindhu, the complainant (respondent No, 2) for the sum of Rs,1,00,000, Rs,3,00,000 and Rs,50,000 respectively, which were alleged to have been dishonoured, on presentation to the drawee bank, leading to registration of criminal case vide F.I.R. No, 501 dated 22-6-2004 under section 489-F with Police Station Civil Lines, Lahore against the petitioner and it was prayed to be quashed on the ground that the complainant entered into an irrevocable agreement to sell dated 8-5-1996 of land measuring 2 Kanals and 17 Marlas for consideration of Rs,5,00,000 and received a sum of Rs,50,000 as earnest money and for the balance sale price of Rs,4,50,000 the cheques in question were given as security which were to be encashed at the time of completion of transaction under clause (vii) of the agreement between the parties. It was asserted that the petitioner had been ready and willing to perform his part of contract but complainant could not discharge his obligations within the stipulated time, thus, the dispute if any, was of civil nature that is why complainant withdrew his suit filed by him for recovery of the cheques amounts filed under Order XXXVII, rule 1, C.P.C. Registration of case was said to be out of malice, in counter-blast to the case registered against the wife of the complainant through F.I.R. No, 386 dated 14-6-2004 in violation of provisions of section 154, Cr.P.C., and in abuse of process of law.
' Assertions of the petitioner in Writ Petition No, 11090/Q of 2004 were that the petitioner issued three cheques in the year 1996 in favor of Muhammad Jawad respondent No, 2 therein, for the sum of Rs,2,00,000 Rs,50,000 and Rs,2,00,000 respectively, which were dishonoured on presentation to the drawee bank, leading to registration of criminal ease vide F.I.R. No, 502 of 2004 under section 489-F, P.P.C. Petitioner claimed to have issued these cheques as security under the agreement to sell between him and the complainant of land measuring 2 Kanals and 4 Marlas for a sale consideration of Rs,5,00,000 out of which an amount of Rs,1,00,000 was paid as earnest money to the complainant and for the balance sale price cheques in question were issued as security for encashment at the time of completion of transaction under clause (vii) of the agreement between them. It was asserted that since the petitioner remained ready/willing to perform his part of contract within the stipulated time but the complainant failed to discharge his obligations and since, the transaction was not completed, the cheques in question were not to be presented for encashment. The case was said to have been registered in counter-blast to the case got registered against mother of the complainant and was claimed to be out of malice, in violation of provisions of section 154, Cr.P.C. And in misuse of process of law with the claim that the dispute if any between the parties was of civil nature and that, these cheques having been issued in the year 1996 when section 489-F, P.P.C. Was not on the statute book and it being not retrospective in effect, the petitioner could not have been charged, thereunder.
3. All the four petitions were opposed by the learned counsel appearing on behalf of the complainant in each case on the grounds that prima facie the petitioner committed cognizable offence and exposed himself to penal consequence, as per law and this Court should not embark upon inquiry about the factual controversy between the parties, in constitutional jurisdiction. It was further argued that the petitioner misrepresented the complainant regarding ownership of the land as Mst. Shahida Iqbal the owner of the land had given power of attorney to the petitioner of only 5 Kanals whereas the petitioner entered into an agreement to sell of land measuring 9 Kanals and 11 Marlas and thus, he had no authority to enter into an agreement in question. It was further emphasized that the petitioner issued fake cheques which were dishonoured on presentation, hence, the offence under section 489-F, P.P.C. Was apparently committed by the petitioner besides execution of unauthorized/fake agreement hence, the prayer made by him may not be granted.
The learned counsel for the complainants relied on the judgments in cases of A. Habib Ahmad v.
M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Ahmad Saeed v. The State and another 1996 SCMR 186 and 2002 PCr.LJ 9 in support of opposition of the constitutional petitions.
4. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended with all the four petitions. Undeniably dispute in all the four petitions emerged out of sale transactions between the parties regarding different parcels of land situated adjacent to Nawan Pind, Mauza Niaz Baig Tehsil and District Lahore. Complainant of the case in hand namely Mst. Shahid Iqbal had agreed to sell her 5 Kanals of land to petitioner and Muhammad Iqbal Sindhoo complainant of F.I.R. No, 501 of 2004 under section 489-F, P.P.C. Is her husband who agreed to sell his land measuring 2 Kanals, 7 Marlas whereas Muhammad Jawad, complainant of F.I.R. No, 502 of 2004 under section 489-F, P.P.C. Is son of earlier mentioned two complainants and agreed to sell the petitioner land measuring 2 Kanals and 4 Marlas. Agreements by all those three were executed in the year 1996-97 with verbatim same language/terms and were inscribed/signed by them after receipt of earnest money as per details, given in factual part of this judgment. According to these agreements, the remaining agreed prices fixed, were secured through crossed cheques, detailed in para.(iv) of each agreement and receipts of those were acknowledged in para. (v), thereof. Parties deferred execution of sale-deeds on account of ban imposed by Lahore Development Authority, till the parties get N.O.C. From the Authority, which was to be conveyed/informed by the complainants to the petitioner. Para.(vii) of the agreement was to the following effect:-- "(vii) That for the time being Lahore Development/Local Authority has imposed a ban on the registration of the sale-deeds. Both the parties will also get 'No Objection Certificate' collectively for the alienation of the said piece of land in favor of party No,
2. As and when the ban is lifted and no objection certificate is obtained from the L.D.A./Local Authority. The party No, 1 will inform the party No, 2 through a registered A.D. Letter. The vendor/party No, 2 after receiving a formal information would execute the sale-deed within three months from the date of the receipt of the above N.O.C.
And lifting of the ban."
5. Cheques issued in the year 1996 were presented to the Bank in the year 2004 which in itself shows that those were to be encashed on completion of transaction of sale in terms of para. (vii) of agreement above reproduced. All these three cases were got simultaneously registered on 22-6- 2004 and till that time neither the required N.O.C. Was obtained nor transactions matured through any sale-deed. Question which hinges for determination is whether petitioner's cheques could have been presented without discharging corresponding obligations and whether on refusal of encashment of those, it would attract mischief of section 489-F, P.P.C. Which was introduced through Ordinance LXXXV dated 25-10-2002, regarding the cheques issued in 1996197.
6. Language of section 489-F, P.P.C. Is unambiguous which lays that when any person dishonestly issues a cheque towards repayment of a loan or fulfilment of some obligation but the same is dishonoured the person issuing such fake cheque will be liable to the prescribed imprisonment. In the instant case, the cheques were given for payment of balance sale price, which was to become due on getting of N.O.Cs. From the L.D.A. And on maturity of sale transactions but none of these eventualities, took place till the registration of cases. By the time cheques were presented, complainants had already transferred their lands through registered sale-deeds though in violation of their earlier irrevocable agreements and had no lawful right to get the balance sale price from the petitioner by presenting him cheques to the drawee bank. This shows that the petitioner did not issue the cheques with dishonest intention and at the time of presentation of those he was also not liable to fulfil any of his obligations under the agreements of sale by the complainants, as he was liable to pay the balance price only after issuance of N.O.Cs. By L.D.A. And notice by the complainant through registered cover but those were never issued.
7. Law regarding retrospectively of penal provisions is firmly settled by this time by holding that these are always prospective. Article 12 of the Constitution of this country warranted the citizens, protection against retrospective punishment by providing that no law shall authorize the punishment of a person, for an act or omission that was not punishable by law at the time of the act or omission. Basic judgment on the subject was given by the Honourable Supreme Court of Pakistan in the case of Nabi Ahmad v. Home Secretary PLD 1969 SC 599 laying conditions of coming under prohibition of Fundamental Rights as to retrospective laws and the salient condition is regarding punitive laws. In another case of Income Tax Officer v. Suleman Jiwa PLD 1970 SC 80 it was held that no statute shall be construed to have a retrospective operation unless such a construction appeared very clearly B or through necessary implication from the Act, itself. Alike view was taken in the case of Abdur Rehman v. The State 1978 SCMR 292 by holding that sentence of transportation of life was 20 years at the time of commission of offence and life imprisonment, being 25 years was subsequently substituted, could not be inflicted. Other judgments relevant to the point are in the cases of Farid Khan v. The State PLD 1965 (W.P.) Pesh. 31; Hashim Ali v. Abdul Karim PLD 1968 Lah. 188; Mir Ghaus Bakhsh Bizinjo v. Islamic Republic of Pakistan PLD 1976 Lah. 517 and Bhai Khan v. The State PLD 1992 SC 14. From scan of case-law and Article 12 of the Constitution, it is clear that convictions and sentences to be recorded in the criminal jurisdiction under ex post facto laws, are prohibited. Petitioner cannot be punished for his misdeeds, if any, of year 1996 in 2004 after lapse of 8 years and that too, at the time of issuance of cheques, act of fake issuance of those, was not punishable by law and in spite of the fact, tentatively, complainants acted with malice, as having sold, their lands to third parties, got criminal cases registered in order to get out of their binding obligations under the agreements of sale with petitioner and to keep pressure on him through putting criminal law in motion, whereas no offence, as discussed above was committed and prerequisites of section 154, Cr.P.C. Were not made out. Complainant apparently acted with ulterior motives in counter-blast to the cases got registered by the petitioner against Mst. Shahida Iqbal who was wife of complainant Muhammad Iqbal Sindhoo and mother of complainant Muhammad Jawad, to usurp big amounts of earnest money received by them and to keep the petitioner away from asserting his rights under the above referred agreements.
Complainants attempted to settle civil dispute through criminal proceedings, by misusing the process of law.
8. Taking case of the fourth petition wherein case was got registered by Muhammad Salim Bhatti who is transferee through registered sale-deed from Mst. Shahida Iqbal. He besides entering into agreement of purchase of land measuring 9 Kanals, 11 Marlas from the petitioner, by-passing him got sale-deed of 5 Kanals directly from Mst. Shahid Iqbal. He reported to the police that petitioner was given power of attorney of 5 Kanals by Mst. Shahida Iqbal but he out of fraud and misrepresentation entered into an agreement of sale with him for land nteasuring 9 Kanals and 11 Marlas. Petitioner has produced certified copy of Mutation No, 22566, dated 24-12-1985 as revived on 25-5-2004 to show that besides 5 Kanals of land, he owned 4 Kanals and 11 Marlas and in this manner, agreement of land measuring 9 Kanals and 11 Marlas with, respondent No, 2, complainant of F.I.R. No, 372, dated 17-6-2004 was correct and he did not commit any offence, as charged, because in order to apply offence under section 420, P.P.C. a person will be said to have cheated some other person if he knowingly substituted one person for another or misrepresenting that he or any person is a person other than he or such other person really was. As per averments in the F.I.R., there are no such allegations against the petitioner hence, offence under section 420, P.P.C. Was not made out from the prosecution case. Similarly for charging offence under section 406, P.P.C.
There should have been some dishonest misappropriation from the property entrusted and in absence of any entrustment, mischief of section 406 will not be attracted. So is the ase of offences under sections 468 and 471, P.P.C., there should have been some forgery for the purpose of cheating but the complainant of this case never set up any such case against the petitioner that he forged any document in order to misrepresent him, the title of his property. In this manner none of the offences charged through F.I.R. No, 372 of 2004 were applicable/attracted and registration of this case was violative of the provisions of section 154, Cr.P.C. As no cognizable offence was committed and these provisions were misused to earn ulterior motives.
9. For the reasons noted above, it is clear that petitioner did not commit any cognizable offence in any of the, four cases, which were got registered out of civil dispute, in place of resort to Civil Court.
There is no ambiguity that all the four cases were in abuse of process of law and those cannot be allowed to continue in order to secure the ends of justice. All the four petitions, above noted, are consequently accepted and registration of all the four cases, vide F.I.R. No, 372 dated 17-6-2004 Police Station Satoo Katla, District Lahore, F.I.R. No, 500 dated 22-6-2004, Police Station Civil Lines, Lahore, F.I.R. No, 501 dated 22-6-2004 Police Station Civil Lines, Lahore and F.I.R. No, 502 dated 22-6- 2004, Police Station Civil Lines, Lahore, are declared to be illegal, void and of no legal effect and by quashing those, writ as prayed in all the four petitions is issued, with no order as to costs.
F. I. Rs quashed.