Muhammad Saeed Akhtar, who is nominated accused of case F.I.R No, 530/08, dated 23-8-2008, registered at Police Station City Hafizabad, in respect of offences under Section 489-F, P.P.C, has sought quashing of the said F.I.R, through this writ petition.
2. Precise allegation against the petitioner, as per the F.I.R, is that he purchased a piece of land from the complainant and his partner Dr. Jehangir and issued a cheque dated 26-2-2008 worth Rs,8,40,000/- but on its presentation, the same was dishonoured.
3. Learned counsel for the petitioner contends that the allegations levelled in the F.I.R are totally false and baseless; that the F.I.R has been lodged malafidely after distorting the real facts; that, as a matter of fact, the petitioner did not purchase any property from the complainant, rather, the same was purchased by one Ch. Muhammad Riaz from Muhammad Razaq vide sale-deed registered on 14-3-2007; that the complainant has got no concern with the said property; that the property intended to be sold had already been sold out against consideration of Rs,7,00,000/- by Abdul Razaq; that the cheque in question was issued by the petitioner as a surety for the payment of consideration of the said property but since the property was neither owned by Dr. Jehangir nor by the complainant, therefore, the payment on the said cheque was withheld by the petitioner and that, Section 489F, PPC, which was added in the P.P.C vide Ordinance No, LXXXV of 2002, died its natural death after expiry of four months, therefore, Section 489-F, P.P.C is no more a part of P.P.C, hence, the impugned F.I.R could not have been registered under the said provision of law. In support of his last contention, learned counsel has relied upon a case of Mian Husnain Ahmad Hyder v. Station House Officer and others (K.L.R 2005 Criminal Cases 39).
4. After hearing the learned counsel for the petitioner, I would like to deal with the last contention first. I have gathered that Section 489-F, P.P.C., was inserted in the Penal Code vide Criminal Law (Amendment Ordinance No, LXXXV) of 2002, which was promulgated by the President of Pakistan on 25-10-2002. A perusal of the. said Ordinance would reveal that the said Ordinance was not promulgated while deriving power under the Constitution, rather, it was promulgated in pursuance of Proclamation of Emergency of 14th day of October, 1999 and Provisional Constitutional Order No, I of 1999 read with Provisional Constitutional (Amendment Order) 9 of 1999.
5. Now reverting to the P.C.O. I of 1999, it would be relevant to point out here that it was issued in pursuance of Proclamation of Emergency on 14th of October, 1999 by the Chief Executive. Article 5 of the said Order reads as under: "Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the Chief Executive all laws other than the Constitution shall continue in force until altered, amended or repealed by the Chief Executive or any authority designated by him."
Later, Provisional Constitutional (Amendment Order), 1999 was issued on 14-11-1999 by the Chief Executive of the Islamic Republic of Pakistan. Through this order, the P.C.O I of 1999 was amended by way of insertion of Article 5-A (1), which reads as under:-- 5A(1). An Ordinance promulgated by the President or by the Governor of the Province shall not be subject to the limitation as to its duration prescribed in the Constitution.
(2) The provisions of clause (1) shall also apply to an Ordinance issued by the President or by the Governor which was in force immediately before the commencement of the Proclamation Order of Chief Executive of the Fourteenth day of October, 1999."
A perusal of the Article 5A(1) reveals that limitation regarding the duration/life of Ordinances, as prescribed in the Constitution, was done away. Later on, in pursuance of Proclamation of Emergency of 14th day of 1999, read with P.C.O I of 1999 and in pursuance of the powers vested in him, by and under the judgment of the Hon'ble Supreme Court of Pakistan dated 12th May, 2000, the Chief Executive of the Islamic Republic of Pakistan promulgated Legal Framework Order, 2002 vide Chief Executive's Order on 21-8-2002. Through the said order, Article 270-AA was inserted in the Constitution of Pakistan. Through sub-Article (1) of the said Article, all President's Orders/Ordinances, Chief Executive's Orders, including the Provisional Constitutional Order No, I of 1999 and all other laws made between 12th day of October, 1999 and the day of coming into force of Article 270-AA, were affirmed, adopted and validated. After coming into existence, in pursuance of General Elections held in 2002, the Parliament passed 17th Amendment whereby Article 270-AA was inserted in the Constitution. The said Article affirmed, adopted and validated all the President's Orders/ Ordinances, Chief Executive's Orders, Provisional Constitutional Order No, I of 1999, amendments made in the Constitution through Legal Framework Order, the Legal Framework Amendment Order, 2002 and all the other laws made between 12th October, 1999 and the date on which the said Article came into force.
6. A survey of the said Presidential Orders and Article 270-AA of Constitution of Islamic Republic of Pakistan reveals that through Article 5A(1) of amended P.C.O. I of 1999, all the Ordinances promulgated/issued during the said interregnum were unfettered and extricated from the constitutional limitation of their four month's life. Criminal Law Amendment Ordinance, 2002 whereby Section 489-F, P.P.C. was inserted, has been validated by the LFO, 2002 and later on by the Parliament, which passed 17th Amendment, which contains Article 270-AA, therefore, the contention raised by the learned counsel for the petitioner that Section 489-F, P.P.C is no more a part of the P.P.C, is hereby spurned.
7. Insofar as the merits of the case are concerned, the petitioner has not denied the issuance of cheque and bouncing thereof. He claims that the cheque was issued as a surety but on non- fulfilment of the relevant condition, payment on the cheque was stopped. He further claims that the complainant was not the owner of the property, intended to be sold, as the same has already been sold by Abdul Razzaq to Muhammad Riaz. However, he has failed to establish any link of the sale-deeds relied upon by him in this regard with the property mentioned in the F.I.R. Be that as it may, .ill the contentions raised by learned counsel for the petitioner relates to a factual controversy, which cannot be resolved in writ jurisdiction.
8. The petitioner has failed to show, as to why the complainant of this case has implicated him, falsely. Further, the investigation cannot be throttled at the initial stage and the F.I.R can only be quashed if it is found that the contents of the same do not show the commission of any offence.
9. In these circumstances, the matter requires a detailed investigation, a function which lies squarely within the domain of the police. High Court obviously cannot perform the role of an investigator nor can it enter into a roving enquiry, into the allegations and counter allegations levelled by the parties. Reliance in this regard is placed on the cases of Col. Shah Sadiq Vs. Muhammad Ashiq and others (2006 SCMR 276) and Muhammad Salim Bhatti vs. Syed Safdar Ali Rizvi and 2 others (2006 SCMR 1957).
10. Consequently, the writ petition having been found merit-less, is dismissed in limine.