Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 the petitioner has challenged the order dated. 8.6.2006 passed by the learned Judicial Magistrate through which he has agreed with the police report fpr cancellation of case FIR No. 159-2006 "dated 20.4.2006 registered under Section 489-F PPC at Police Station Gulshan-e-Ravi, Lahore. The petitioner was the complainant of the said-case.
2. The brief facts as alleged in the FIR are that Saqib Javaid (Respondent No. 4) had issued a cheque amounting to Rs. 7,50,000/- in favour of the petition& which was to be drawn at Allied Bank of Pakistan, Gulshan-e-Ravi Branch, Lahore. The cheque was presented in the Bank, which was returned due to deficiency of funds. Then the 'petitioner approached Respondent No. 4, who alongwith his father Respondent No. 5 asked for some time to arrange the funds and the -latter assured in the presence of Sajid Ali and Rao Waheed Iqbal PWs that if the second time the cheque is not encashed, he would be responsible for its payment. The petitioner in view of this undertaking when for the second time presented the cheque in the bank on 25.3.2006, the same was again dis- honoured. Then the petitioner moved an application and the instant case was registered, but after conducting the investigation, the police submitted report for cancellation of case before the learned Judicial ,Magistrate, who agreed with the same and cancelled the case vide his order dated 8.6.2006.
3. The learned counsel for the petitioner has contended that the mala fide of the police is crystal clear that the investigation was transferred to Farman Ali, SI at Police Gulshan-e-Ravi, Lahore and on the same day he joined the respondents in the investigation, but did not wait for the petitioner/complainant to come and submitted report for cancellation of case, which was verified by Rana Shujat Ali, DSP Islampura Circle Lahore in an arbitrary manner and the leaned Judicial Magistrate also agreed with the same without applying the judicial mind; that prima-facie the cognizable offence was made out as the clique was admittedly issued by Respondent No. 4, which on presentation before the bank was dishonoured and no further evidence was required in the matter.
4. The learned counsel for Respondent Nos. 4 & 5 has opposed this petition on the ground that Respondent No. 4 Saqib Javaid had only issued the cheque as a guarantor of one Irfan Nizami, who had the dealing with the petitioner, but the respondents herein had nothing to do with the amount in question and this factinn was admitted by Irfan Nizami during the investigation; .that the investigation had been conducted 'one true lines and while finding the respondents-accused innocent in this case, the cancellation report was =rightly submitted before the learned Illaqa Magistrate, who has accepted the same and that the impugned order is just and legal and may be maintained.
5. I have heard the arguments advanced by learned counsel for the parties and perused the record with due care and caution.
6. The present case was registered on the application of the petitioner on 20.4.2006 and record itself shows that for the first time investigation was entrusted to Muhammad Amin, ASI, who on 20.4.2006 recorded first Zimni on the basis of statement of the petitioner and started the investigation. The petitioner complainant was directed to produce the original cheque, which was dishonoured. The police file shows that on 26.4.2006 both the parties were summoned for 27.4.2006.
According to Zimni No. 3 recorded by Muhammad Amin, ASI/I.0 on 27.4.2006, the petitioner did not appear, but only Saqib Javaid and his father Muhammad Javaid (Respondent Nos. 4 & 5) appeared before him and investigation was conducted. Then again on 14.5.2006, the accused party had appeared and took the stand that in fact one Irfan Nizami (relative of the accused- respondentS) who deals in the business of cloth at Haiderabad, had to pay the amount to the petitioner and Respondent No. 4 had issued cheque in the sum of Rs. 7,50,000/- as guarantor only to the petitioner. On 15.5.2006 Farman Ali, SI conducted the investigation and declared the case false and submitted his report before DSP, who recommended the same for cancellation and presented the same before the learned Judicial Magistrate, who agreeing with the same, cancelled the case vide impugned order dated 8.6.2006. The mala fide of Farman Ali, SI/I.O. is crystal clear from the file, which discloses that the petitioner, who was complainant of this case, was not summoned by Farman Ali SI/I.O. Even he was not joined in the investigation by the earlier I.O. On the other hand the accused-respondents appeared before the I.O. who were not on bail and it is also not mentioned in the police record that the accused-respondents had ever moved any application for pre-arrest bail before the competent Court and they were granted ad-interim pre-arrest bail, but the police did not arrest them during the investigation without any reason.
7. After perusal of the police file, it is straight away noticed that the investigation in this case had prima facie been conducted malafidely and cancellation report was prepared merely relying upon the version of the respondents-accused party that the cheque was issued only as a guarantee for Irfan Nizami, who had been dealing with the complainant/ petitioner. However, it is an admitted position that the cheque had been issued by Respondent No. 4 in favour of the petitioner, which was presented before the Bank, twice, but the same was dishonored each time due to insufficiency of funds and prima facie the offence under Section 489-F PPC was made out, which reads as under: "Whoever dishonesty issues a cheque towards repayment of a loan or fulfillment of an obligation which is dishonored 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 a fault in not honouring the cheque".
'Whether the cheque had been issued as a guarantor or towards repayment of a loan or fulfillment of an obligation required recording of evidence and it was the function of the Court decide whether there was some element of dishonestly on the part of the executant of the cheque. The accused party was to only show that they had made arrangement with the Bank for payment of the amount, but the Bank was at fault in not honouring the cheque. In this regard no evidence had been collected during the investigation, but the case was recommended for cancellation in an arbitrary manner relying upon the oral version of the accused C party and no documentary evidence was collected. On the other hand, the petitioner is in possession of the cheque admittedly issued by Respondent No. 4, which has been dishonoured by the concerned Bank.
8. The learned Magistrate has agreed with the police report through the impugned order in a mechanical manner and he appears to have not applied the judicial mind to consider the facts of the case. No doubt the impugned order is an executive order, but the learned Maga Magistrate was to pass the speaking order and he in no way was bound by the police opinion to agree with the same: It is settled law that the police opinion is not binding on the Courts. I also disagree with the finding of the learned Magistrate in the impugned order that there is no incriminating evidence available on the file against the accused persons as the complainant had brought on the record the copy of the tlishonoured cheque, the issuance of which was even admitted by the accused- respondents during the investigation. The petitioner was not bound to produce any other evidence, but it was the duty of the respondents to rebut the allegation. Thus, it is clear that the learned Magistrate had not properly exercised the jurisdiction vested in it, which has rendered the impugned order illegal and without jurisdiction and this Court is very much competent to interfere therewith in writ jurisdiction.
9. Resultantly, this writ petition is accepted, the impugned order is set aside and the case is remanded to the learned Magistrate, E who shall pass fresh orders on the cancellation report submitted by the police within a fortnight after receipt of this order.
10.Before parting from this order, I am constrained to refer this matter to the D.I.G (Investigation), Lahore, who is directed to entrust the investigation of this case to any other honest Police Officer and the new Investigating Officer will finalize the same in accordance with .law after joining both the parties. The D.I.G is also directed to hold an inquiry into the conduct of Muhammad Amin, ASI, Farman Ali, SI and Rana Shujat Ali, DSP, who appear to have conducted the investigation in an illegal_ manner as pointed out above. If they are found guilty, strict disciplinary action shall be taken against them. The report shall be submitted to this Court through Deputy Registrar (Judicial) with two months. The police file has been retained in the Court and handed over to Mr. Naeem Masood, Assistant Advocate General who is directed to transmit the same in a sealed cover to the D.I.G (Investigation), Lahore for compliance.