' ABDUL RASHEED KALWAR, J.--- Applicant Basar Khan lodged F.I.R. No,102 of 2006 at Police Station Yousuf Plaza on 9-11-2006 at 1410 hours under section 489-F, P.P.C. The F.I.R. Discloses that complainant owns a Plot bearing No,166, Scheme No,36, Deh Safooran, Gulistan-e-Jauhar, Karachi.
He had entered into sale agreement, dated 15-5-2006 in respect of said plot with respondent No,2 for sale consideration of Rs,25,00,000. At the time of execution of agreement, Rs,1,00,000 were paid by respondent No,2 to the applicant in cash and the remaining amount was tendered by him through three cheques i,e, (1) Cheque No,3724744 for Rs,9,00,000 dated 16-5-2006, (2) Cheque No,3724746 for Rs,5,00,000, dated 16-6-2006 and (3) Cheque No,3724747 for Rs,10,00,000 dated 16- 7-2006 from an account in My Bank, Water Pump Branch, Latif Square Block 16, Federal "B" Area, Karachi. Out of these cheques, one cheque of Rs,9,00,000 was encashed but remaining two cheques were bounced. Thereafter applicant demanded money from respondent No,2 but he avoided and issued threats to the applicant. Then the applicant lodged F.I.R.
2. The matter was investigated by the S.-I. Jamil Ahmed Siddiqui, who did not forward the respondent No,2 but submitted report under section 169, Cr.P.C. Before IX-Civil Judge and Judicial Magistrate, Karachi Central. In the said report he had submitted that respondent No,2 himself appeared before the police for investigation and told the police that Plot NC. No,166, scheme No,36, Deh Safooran Goth Gulistan-e-Jauhar, Karachi was offered for sale by the applicant through Estate Broker, Gulab for sale consideration of Rs,25,00,000. The applicant had disclosed to him the nature of the property under sale as his ancestral property. Respondent No,2 had paid Rs,1,00,000 cash and cheque of Rs:9,00,000 bearing No,3724744 dated 16-5-2006 pertaining to My Bank, Water Pump Branch which was encashed by Basar Khan on 17-5-2006. After execution of sale agreement, respondent No,2 obtained Photostat copies of the relevant documents of the plot from Basar Khan and then he issued two more cheques bearing No,3724746 dated 16-6-2006 for Rs,5,00,000 and No,3724747 for Rs,10,00,000 dated 16-7-2006 acting as per the terms of sale agreement. Then he went to Mukhtiarkar, Gulshan-e-Iqbal Town for verification of the ownership of the property of the plot. From the map of K.D.A. This plot was found to have been earmarked for parking. On such revelation, respondent No,2 went to the bank and got stopped payment of two cheques, one for Rs,5,00,000 and another for Rs,10,00,000. Respondent No,2 tried to contact Basar Khan and his brother Ghulam Hussain Baloch but he did not succeed. He came to know that police was searching for him as Basar Khan had lodged F.I.R. Against him, therefore he went to police station and stated the facts to the police. From the verification of record lying in the office of Mukhtiarkar, Gulshan-e-lqbal Town, it revealed that this plot belonged to Government. The applicant could not produce the title documents of the property before police. The Investigating Officer has opined that, applicant had committed cheating in respect of aforementioned plot, and thereby entered into sale agreement. Besides it, he had received Rs,1,00,000 in cash and cheque of Rs,9,00,000 which was encashed by him. The Investigating Officer also found that the cheques were not issued by respondent No,2 but those were from the account of his friend namely Khursheed.
' Respondent No,2 tried to get his Rs,10,00,000 returned from the applicant, as such the applicant in order to terrorize and cause harassment to respondent No,2, with mala fide intention, had lodged false F.I.R. In these circumstances, he recommended disposal of the Case in "B" Class.
3. Learned 9th Civil Judge and Judicial Magistrate, Karachi Central has allowed report of the Investigating Officer with following observations:--- "I have carefully gone through the above submission so also perused the police file. I see that it is an admitted position on record that cheques, which were bounced were issued by the accused Muhammad Ilyas. It is settled principle of law that section 489-F, P.P.C. Does not call for mechanical immediate action when a cheque returned by a banker but is to be used only where, prima facie, the purpose of issuing cheque was dishonestly pure and simple and in the matter of loan and past conduct of party is also to be seen business transactions genuine disputes and contractual obligation may not constitute an intention for the offence so, I derived strength from case-law reported in PLD 2005 Lah. 207 and PLD 2006 Lah.
725. From the discussed circumstances, I am of opinion that there seems to be some dispute between the complainant and accused over sale/purchase of the plot as referred to above, and this is a case of stopping the payment, therefore, it cannot be held safely that the accused Muhammad Ilyas with mala fide intention and dishonestly issued alleged cheques hence being satisfied with the contents of report under section 169, Cr.P.C. As well as submission of the Investigating Officer. I hereby allow report as submitted by Investigating Officer."
4. Learned counsel for the applicant has argued that it is premature to say that respondent No,2 did not commit the offence under section 489-F, P.P.C. And it is for the trial Court to decide whether the offence has been committed or not. As per him, the Magistrate has only to see whether the offence under the said section has been made out or not and the contents of the F.I.R. Are sufficient to establish the offence under section 489-F, P.P.C.; the Court has solely followed the opinion of the Investigating Officer which should not have been done without examining the documents issued by the D.D.O. He has relied upon Mst. Zohra Bibi v. The State PLD 1992 Pesh. 80 and Dildar v. Safdar and 2 others 1990 PCr.LJ 158 (Peshawar).
5. The learned counsel for the applicant has shown me the list of occupants residing in the vicinity, where the applicant had sold the property to respondent No,2, through sale agreement. Through this list, he wants to establish that, the property in question has been regularized and though the applicant does not possess the title documents of the property, yet he is owner of the property. He has shown me a letter issued by Sindh Gothabad Scheme, Board of Revenue, Hyderabad mentioning that village "Chisty Nagar", Deh Safoorana established over an area of 14-00 Acres Na- Class No,166, was regularized by the Deputy Commissioner, Karachi East.
6. The Investigating Officer, present in Court, has reiterated the contents of the report submitted by him under section 169, Cr.P.C.
7. Heard applicant's counsel, Investigating Officer and perused the material available on record.
Before going to resolve the controversy, let us go through the text of section 489-F, P.P.C.:--- "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 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."
8. Admittedly, on the basis of these documents, the applicant could not transfer the property in question through registered sale-deed to respondent No,2. No other transaction between the parties except sale agreement in respect of the said property has been shown. The main ingredients of section 489-F, P.P.C. Are:---
(i) cheque should have been dishonestly issued;
(ii) it should be in respect of repayment of loan; or
(iii) in respect of some obligation.
The cheque was issued in pursuance of sale agreement which under these circumstances, neither appears to have been issued dishonestly or with the intention of cheating or defrauding the applicant. Hence, mens rea is apparently unavailable in the case against respondent No,2. On the contrary, it was the bona fide of respondent No,2 whose first Cheque No,9,00,000 was encashed. No repayment of loan has been alleged under these cheques. After discovery of the fact that the property did not belong to the applicant but to the Government, the respondent No,2 was not under any obligation to allow the encashment of remaining two cheques. From the circumstances, it appears that the applicant attempted to cheat respondent No,2 and in such a situation, respondent No,2 was well within his rights to get the payment of remaining cheques stopped from the bank.
9. Before reaching the conclusion, let us have a benefit from the case-law cited by the learned Advocate for the applicant.
' In Mst. Zohra Bibi's case reported in PLD 1992 Pesh. 80 at para.8 relevant page 82 placitum A and B, it was held as under:--- "Although there is no provision in Criminal Procedure Code debarring Police Investigation Officer for submitting a fresh report in suppression to the earlier one either on his own initiative or on the direction of the superior Police Officers, but it implies that the report would be prepared and submitted after proper and independent application of mind. In the instant case there is sufficient material for and against the parties and the police cannot be allowed to adjudicate the same by cancelling the case against the accused. It would be in the fitness of things in order to arrive at a just and fair conclusion that the challan be put in Court as has been directed by the learned Supreme Court of Pakistan and it should be left to the Court to decide the matter one way or the other."
' This case pertained to petition under section 561-A, Cr.P.C. For seeking direttions to S.H.O. For submission of challan and to Illaqa Magistrate for passage of order on report under section- 173 read with sections 169/63, Cr.P.C. With prayer of release of petitioner from Darul Aman who was booked in an F.I.R. Under sections 11/16, Offence of Zina (E.H.O.), 1979 read with sections 194, and 494, P.P.C. And she was lodged in Darul Aman for one month and yet investigation was not complete and challan was not submitted by S.H.O.
' In the case of Daldar v. Safdar reported in 1990 PCr.LJ 158 in paras. Nos.13 and 14, placitum "B" and "C" at relevant page 162 it is held as under:-- "(13) Let it be borne in mind that in exercise of his powers under section 169, Cr.P.C. a Police Officer is to act with great care and caution, lest a guilty person may go scot free without facing his trial. It is only when 'there is no sufficient evidence' or `reasonable ground of suspicion to justify the forwarding of accused to a Magistrate' that he can undertake the exercise under the aforesaid provision. But 'insufficiency of evidence' or `non-existence or reasonable ground' is one thing and evaluation of evidence forthcoming for and against the accused at the investigation stage, is another. In the latter case, he is not at all supposed to arrogate himself the functions of adjudication, in order to determine the nature of his offence and then to give a pre-trial verdict of the innocence of the accused, more particularly on the ground of such special plea as the one of alibi the onus of judicially proving whereof legally lies heavily on the accused. I am, therefore, clear in my mind that the course, the S.H.O. Muhammad Salim has followed, in the instant case, was not at all permissible under the law.
(14) In the same wake of events, I am to regretfully observe that the learned Magistrate too has acted quite arbitrarily inasmuch as before passing the impugned order, he did not care to have gone through the record of the case with such prudence as his judicial office demanded of him. He appears to have failed to apply his conscious mind to the facts of the case and the evidence gathered thus far during the investigation and instead, toed the line so illfoundedly and unscrupulously drawn by the S.H.O. For the learned Magistrate has adopted the same reasoning as were mentioned in the application and obviously subscribed thereto rather mechanically."
' This case pertained to discharge of accused on the ground of plea of alibi.
' By no stretch of imagination dicta laid down in both the cases have bearing on the present circumstances of the case. Both the cited cases do not pertain to the offence under section 489-F, P.P.C. The present case is based on documentary evidence and even after believing whole story of the complainant as true the case under section 489-F, P.P.C. Is not made out as I have mentioned hereinabove.
10. No doubt it is not the ipse dixit of police to decide the fate of the case and opinion of Investigating Officer is not binding upon the Court, but it would also be most unfair to drag an innocent person into Court and leave him to face hardships of criminal trial, though prima facie offence is not made out against him. The police and Magistrate are not prevented and precluded by any provision of law to act fairly and justly. On the contrary the law favours justice and fair play at every stage of the case.
11. Due to lack of all three ingredients of section 489-F, P.P.C., I do not see any merit in this criminal miscellaneous application; furthermore, this appears to be a matter of civil dispute, therefore, the parties are at liberty to pursue their remedies before the competent Civil Court.
12. In view of above observations, the criminal miscellaneous application is dismissed in limine.