This judgment proposes to decide four Constitutional petitions, one in hand and three others i,e, W.Ps. 11088, 11089 and 11090 of 2004, as all these involve similar questions 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 FIR No, 500 dated 22.6.2004 under Section 489-F PPC with Police Station Civil Lines, Lahore, against the petitioner with the allegations that the petitioner issued three cheques in the year 1997 in favour of the complainant for the sums 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 Its. 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 CPC. 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/unathorizedly had executed sale-deed of the land subject of the agreement in favour of third party i,e, Muhammad Salim Bhatti, complainant of FIR 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 PPC, 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 FIR No, 372 dated 17.6.2004 under Sections 406, 420, 468, 471 PPC 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 favour 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 favour 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 favour 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 favour of the petitioner, were said to have colluded and a sale-deed of the same 5 kanals was executed by Mst. Shahida in favour of complainant/Respondent No, 2, despite contrary direction by the Civil Court, cognizance of the petitioner's suit against Mst. Shahida Iqbal and, thus, registration of criminal case was asserted to bein 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 favour of Muhammad Iqbal Sindhu, the complainant (Respondent No, 2) for the sums 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 FIR 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 CPC . Registration of case was said to be out of malice, in counter blast to the case registered against the wife of the complainant through FIR. 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 favour of Muhammad Jawad Respondent No, 2 therein, for the sums 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 case vide FIR No, 502/2004 under Section 489-F PPC. 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, PPC was not on the statute book and it being not retrospective in affect, 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 PPC 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 case of A Habib Ahmad versus M.K.G. Scott Christian and 5 others (PLD 1992 SC 353), Ahmad Saeed Versus the State and another (1996 .SCMR 186) and (PLJ 2001 Karachi 1198) 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 transaction 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. Shahida Iqbal had agreed to sell her 5 kanals of land to petitioner and Muhammad Iqbal Sindhoo complainant of FIR No, 501/2004 under Section 489-F PPC is her husband who agreed to sell his land measuring 2 kanals 7 marlas whereas Muhammad Jawad, complainant of FIR No, 502/2004 under Section 489-F PPC 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 favour of Party No,
2. As and when the ban is lifted and no objection certificate is obtained from the LDA/Local authority. The Party No, 1 will inform the Party No, 2 through a registered AD 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 NOC 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 term 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 NOC 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 PPC which was introduced through Ordinance LXXXV dated 25.10.2002, regarding the cheques issued in 1996/97.
6. Language of Section 489-F, PPC is un-ambiguous which lays that when any person dishonestly issues a cheque towards repayment of a loan or fulfillment 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 NOCs from the LDA 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 NOCs by LDA 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 versus Home Secretary (PLD 1969 SC 599) laying conditions of coming under prohibitions of Fundamental Rights as to retrospective laws and the salient condition is regarding punitive laws. In another case of Income Tax Officer Versus 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 or through necessary implication from the Act, itself. Alike view was taken in the case of Abdur Rehman Versus 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 versus the State (PLD 1965 (WP)
Peshawar 31) Hashim Ali Versus Abdul Karim (PLD 1968 LAhore 188), Mir Ghaus Bakhsh Bizinjo Versus Islamic Republic of Pakistan (PLD 1976 Lahore 517) and Bhai Khan Versus 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 can not 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 the those was not punishable by law and inspite 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. Complainants 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. Shahida 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 measuring 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 FIR 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 PPC, 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 averment in the FIR, there are no such allegations against the petitioner hence, offence under Section 420 PPC was not made out from the prosecution case. Similarly for charging offence under Section 406 PPC 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 case of offences under Sections 468 and 471 PPC, there should have been some forgeiy 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 FIR 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 C 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 FIR No, 372 dated 17.6.2004 Police Station Satoo Katla, District Lahore, FIR No, 500 dated 22.6.2004, Police Station Civil Lines, Lahore, FIR No, 501 dated 22.6.2004 Police Station Civil Lines, Lahore and 'FIR 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.