' RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J. --Through this writ petition, petitioner, namely, Mazhar Hussain son of Mehdi Hussain, by filing this constitutional petition has sought quashing of F.I.R. No, 378/2006, dated, 5-12-2006, registered with Police Station Fateh Sher, Sahiwal, for offence under section 489-F, P.P.C. Against the petitioner at the instance of respondent No,3/Shan-e-Raza.
2. Brief facts for filing of this petition are that case F.I.R. No,378 dated 5-12-2006 under section 489-F, P.P.C. Has been got registered at Police Station Fateh Sher, District Sahiwal by the respondent No,3.
According to the prosecution story the petitioner issued a Cheque No,571014 dated 15-9-2006 for an amount of Rs,4,00,000 of National Bank of Pakistan Ahmadpur East, District Bahawalpur in the name of Shan-e-Raza respondent No,3/complainant on its presentation, the same was dishonoured, so the petitioner has committed fraud with the respondent No,3 whereupon complainat/respondent No,3 lodged above F.I.R. At Police Station, Fateh Sher, Sahiwal where complainant/Drawee has deposited the cheque in question in the Muslim Commercial Bank.
3. It is stated that F.I.R. Registered at P.S. Fateh Sher under section 489-F, P.P.C. On 5-12-2006 was without jurisdiction. According to the learned counsel the disputed cheque was issued by Bilal Cotton Factory Ahmadpur East having their Account No, 10857 in National Bank of Pakistan, Katchery Road, Ahmadpur East and said cheque was also dishonoured by the said Bank so registration of the F.I.R. By P.S. Fateh Sher was totally unwarranted and without jurisdiction. After investigation the report under section 173, Cr.P.C. Was submitted by the police in which it was found that this F.I.R. Has been registered without jurisdiction and is liable to be cancelled. The Investigating Officer report was verified by the DSP/SDPO Circle, Sahiwal but learned Magistrate while disagreeing with the said report only mentioned that I do hereby take the cognizance of this case.
4. Learned counsel for the petitioner contended that respondent No,3 has lodged the impugned F.I.R. With the mala fide intention and local police hits rightly cancelled the case as P.S. Fateh Sher District Sahiwal has no jurisdiction as no offence has been committed within the jurisdiction of P.S. Fateh Sher; that civil litigation between the parties is pending and the complainant has lodged the present F.I.R. With mala fide. Learned Magistrate has not applied his independent judicial mind while passing the impugned order.
5. Arguments heard. Record perused.
6. Whether F.I.R. Can only be lodged in a police station, where the bank, which has dishonoured the cheque, is situated? Or whether the F.I.R. Can be lodged, in the police station, where complainant has deposited the cheque in his own account? In order to understand the controversy involved in the matter, it will be appropriate to have a glance at sections 177,179, Cr.P.C. Rule 25 (34) of the Police Rules, sections 24 and 489-F, P.P.C.
"177. Ordinary place of inquiry and trial.--Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed.
179. Accused triable in district where act is done or where consequence ensues.--When a person is accused of the commission of offence by reason of anything, which has been done, and of any consequence, which has ensued such offence, may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done, or any such consequence has ensued.
' Illustrations
(a) A is wounded within the local limits of the jurisdiction of Court X, and dies within the local limits of the jurisdiction of Court Z. The offence of the culpable homicide of A may be inquired into or tried by X or Z.
(b) A is wounded within the local limits of the jurisdiction of Court X, and is, during ten days within the local limits of the jurisdiction of Court Y, and during ten days more within the local limits of the jurisdiction of Court Z, unable in the local limits of the jurisdiction of either Court Y, or Court Z, to follow his ordinary pursuits. The offence of causing grievous hurt to A may be inquired into or tried by X, Y or Z.
(c) A is put in fear of injury within the local limits of the jurisdiction of Court X, and is thereby induced, within the local limits of the jurisdiction of Court Y, to deliver property to the person who put him in fear. The offence of extortion committed on A may be inquired into or tried either by X or Y.
(d) A is wounded in the State of Junagadh and dies of his wounds in Karachi. The offence of causing A's death 'may be inquired into and tried in Karachi.
' Rule 25.3 of the Police Rules, 1934.
' When the occurrence of a cognizable offence in another police 'station jurisdiction is reported, the fact shall be recorded in the daily diary and information shall be sent to the officer in charge of the police station in the jurisdiction of which the offence was committed. Meanwhile all possible lawful measures shall be taken to secure the arrest of the offender and the detection of the offence.
' Rule 25.3 of the Police Rules, 1934.
(1) If a police officer after registering a case and commencing an investigation discovers that the offence was committed in the jurisdiction of another police station he shall at once send information to the officer Incharge of such-Police Station.
(2) Upon receipt of information such officer shall proceed without delay to the place where the investigation is being held and undertake the investigation.
' PAKISTAN PENAL CODE: "24. 'Dishonestly' whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
489-F. Dishonestly issuing a cheque.
In The Law Lexicon edited by Justice Y.V. Chandranchud, at page 567 "dishonestly" defined as "giving" the ordinary meaning the word "dishonestly" means "dishonesty". It further elaborates dishonestly as disposition to lie, cheat, deceive, or defraud; untrustworthiness, lack of integrity. Lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness, disposition, to defraud, deceive or astray.
' In the case Maj (Retd.) Javed Inayat Khan Kiyani v. The State (PLD 2006 Lahore 752), my learned brother Syed Shabbar Raza Rizvi J., has dealt with this issue in detail in paragraph 11, wherein discussing the comparison between section 489-F, P.P.C. And section 20(4) of the Financial Institutions (Recovery of Finance) Ordinance 2001, his lordship observed that language in both the enactments is same. The word "loan" is substituted in Pakistan Penal Code with word "finance".
Similarly, punishment of one year is substituted with three years. "Objective to legislate section 20(4) of Financial Institutions (Recovery of Finance) Ordinance, 2001, was different' than objective to legislate section 489-F P.P.C. But section 489-F P.P.C. Had not been legislated/drafted differently .
Section 489-F P.P.C. Has been lifted from section 20(4) of the Financial Institution (Recovery of Finance) Ordinance, 2001. Purpose of enacting said laws was to provide speedy measures, for the recovery of outstanding loans and finances. In case cited above, while confirming pre-arrest bail granted to the accused, this Court defined the word "dishonestly" as under;-- "A person can be said to have dishonest intention if in taking property it is his intention to cause gain, by unlawful means of the property to which the person so gaining is not legally entitled or to cause loss by wrongful means of property to which the person so losing is legally entitled".
' Word "loan" has neither been defined in Pakistan Penal Code nor in the Financial Institutions (Recovery of Finance) Ordinance, 2001. Word "finance" is defined in section 2(d)(iv) of the Financial Institutions (Recovery of Finance) Ordinance 2001. "Finance" also includes "loan', which means, Advance, Cash Credit, Over Draft, Packing Credit, a bill discounted and purchased or any other financial accommodation provided by a financial institution to a customer. "Loan" according to Wharton's Law Lexicon is anything lent or given to another on condition of return or payment.. The word 'obligation" is defined in Oxford Dictionary as "the state of being forced to do something because it is your duty, or because of law'. (Oxford Advance Learner's Dictionary 7th Edition, page 1045). According to Law Lexicon, "obligation" means a duty, the bond of legal necessity which binds together two or more determinate individuals, an act which binds a person to some performance, a binding or state of being bound in law; an act by which a person becomes bound to another or for another, or to forbear something etc. (The Law Lexicon edited by Y.V. Chandrachud, page 1335).
Similarly word, "obligation' has been defined in Black's Law Dictionary as a legal or moral duty to do or not do something.
' Expression "Ensue" has been defined in the Black's Law Dictionary; to follow after; to follow in order or train of events.
7. The contention of the petitioner that during the pendency of the civil suit criminal proceedings cannot be initiated does not have any force because it is well settled law that civil and criminal proceedings can be proceeded side by side. There is no bar on the initiation of C criminal proceeding in presence of a civil suit. I am guided by Full Bench judgment of this Court reported as Muhammad Shafi v. DSP and others (PLD 1992 Lahore 178), Malik Naeem Awan v. Malik Aleem Majad and 5 others (PLD 2008 Lahore 358).
8. Bare reading of section 179, Cr.P.C. And illustrations (a)(b)(c) referred above indicates that when any person commits any offence or do some act and due to that act any consequence ensue, such offence can be inquired into or tried by the Court where act done or consequence ensue.
Reference can be made to the case of Basharat Iqbal v. The State (1993 PCr.LJ 2151) wherein it was held:-- ' Muslim Family Laws Ordinance (VIII of 1961)-- "S.6(5)---Criminal Procedure Code (V of 1898), Ss. 177, 179 & 561-A---Quashing of proceedings for alleged want of jurisdiction in the Trial Court---Complainant (first wife) was admittedly residing at Lahore---Offence alleged against the accused in the complainant was of second marriage which was solemnized at Hyderabad but its consequence had ensued at Lahore as well as where the first wife was residing---Court at Lahore, therefore, had the jurisdiction to try the complaint---petition for quashing of proceedings in the complaint pending in the Court of Illaqa Magistrate, Lahore, was dismissed accordingly."
' In another case of Muhammad Zafar v. Zahoor 1983 PSC 957 =- PLD 1983 FSC 480 it was also held as under:-- ' Criminal Procedure Code (V of 1898)--- "Ss.177 and 180, Illustration (C) 53 read with Zina (Enforcement of Hudood) Ordinance (VII of 1979)
Ss. 10(3), 11---Offence of Zina abduction---Trial of---Jurisdiction of Court---Offence of abduction committed at place K, while offence of Zina allegedly committed at place B---Trial Court at place K---Held: Contention that Court had no jurisdiction to try for offence of Zina, repelled---Held: Court at place K had jurisdiction to try for the both offences and was wrong in holding that he had no jurisdiction---Held further; infirmity in trial at place K if any could have cured by section 537 of Cr .
P. C . "
' Judgment cited by the learned counsel for the petitioner i,e, Shaukat Ali v. District Police Officer, Burewala District Vehari 2 others (2007 PCr.LJ 1997) is not applicable to the facts and circumstances of the case. In that case, cheque was issued by the petitioner prior to the insertion of section 489-F P.P.C. In the Statute.
9. In the present case, the complainant deposited cheque in question in the MCB Sahiwal, where he has account, said cheque was dishonoured due to closure of the bank account. The case F.I.R.
No,378 was registered on the application of the complainant, on which the Addl. Sessions Judge/Ex Officio Justice of Peace, Sahiwal gave direction of registration of the case. Bare reading of the section 179 Cr.P.C. Indicates that although cheque of NBP, Ahmadpur Shariqa, Bahawalpur was presented at Sahiwal and the same was dishonoured. The moment the cheque was dishonoured offence was completed at Ahmad Pur East but complainant came to know about commission of offence i,e, dishonour of cheque at Sahiwal from the Muslim Commercial Bank, where he has his account in which he has deposited the cheque in dispute. Offence under section 489-F was completed at Ahmadpur East, where cheque in question was dishonoured by the National Bank of Pakistan, Ahmadpur East, Bahawalpur Branch. However, consequence of the offences in term of section 179 Cr.P.C. Were ensued at Sahiwal, hence, complainant/Drawee has validly lodged the impugned F.I.R. At Sahiwal. There is no legal bar or prohibition on complainant/Drawee in this regard. It is his option or choice, he can initiate criminal proceeding under section 489-F any of two places, hence, I am of the view that both police stations of Ahmadpur East and Fateh Sher, Sahiwal have got jurisdiction to lodge F.I.R. Complainant/Drawee opted to lodge the F.I.R. In police station Fateh Sher, Sahiwal where MCB Bank is situated and where he deposited the cheque in question.
Fateh Sher Police Station was competent to conduct inquiry/investigation in the matter. The impugned F.I.R. Cannot be quashed merely on the sole ground that the same has not been registered within the jurisdiction where cheque was dishonoured. Rules 25(4) of the Police Rules, 1934 provides that if any police officer registers a case without having jurisdiction and during the investigation if it is discovered that offence committed in the jurisdiction of some other police station then police officer shall send the information of the case to the Officer Incharge of the such police station. Local police instead of cancelling the F.I.R. They should have transmitted the case to the relevant police station. It cannot be the sole ground for cancellation or quashment of the F.I.R. It will be too technical knockout of the complainant/Drawee which is not at all the object of 489-F.
Object of section 489-F, P.P.C. Was to discourage the giving of cheque with dishonest intention.
Legislature despite availability of civil remedy under Order XXXVII, C.P.C. Has inserted this offence in the Penal Code---in order to provide protection to Drawee against the drawer who gave cheque for the repayment of loan or obligation with dishonest intention in order to cheat, defraud or to cause wrongful loss of the complainant. Drawee cannot be made to suffer merely that he has not initiated criminal proceedings at the place of drawer, where cheque was dishonoured. Offence under section 489-F, P.P.C. Is not meant to try the bank or its officer, who issued dishonour slip. It is the accused/drawer, who gave cheque with dishonest intention. Learned Magistrate after going through the cancellation report submitted by the police has rightly disagreed with the same. Even otherwise, order passed by the Magistrate is administrative in nature and the same cannot be challenged in writ jurisdiction.
10. Disputed question of facts are involved in the matter, which cannot be resolved in the constitutional jurisdiction. I am fortified by the dictum laid down in the case of Col. Shah Sadiq v.
Muhammad Ashiq (2006 SCM R 276) wherein it was held that "High Court had no jurisdiction to quash F.I.R. By appreciation of documents produced by the parties without providing chance to cross examine or confronting the documents in question. High Court would error in law to short circuit the normal procedure of law as provided under Criminal Procedure Code 1898. Party seeking the quashing of F.I.R. Had alternative remedy to raise objection at the time of framing the charge against them by the trial Court or at the time of final disposal of the trial after recording the evidence---Said party had more than one alternative remedies before the trial Court under section 265-K & 249-A, Cr.P.C. Or to approach the concerned Magistrate for cancellation of the case under the provisions of Cr . P. C . "
' Likewise, in the case of Rafique Bibi v. Muhammad Sharif and others (2006 SCM R 512), the Honourable apex Court held that disputed questions of fact could not be gone into proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Reference can also be made to the case of Seema Fareed and others v. The State (2008 SCM R 839) in this regard.
11. I am not inclined to exercise discretional jurisdiction in favour petitioner as constitutional jurisdiction is meant for aid of Justice and not for the illegal gains. Case is at the initial stage, which cannot be quashed at this stage, which will amount to deflecting or short-circuiting the normal ordinary procedure provided under the law. Petitioner is at liberty to take all these pleas before the proper forum.
12. Resultantly, I find no occasion to interfere in the matter at this stage. This petition being meritless is hereby dismissed.