JUDGMENT KAZIM ALI MALIK, J. - Muhammad Khan, petitioner, got registered a case FIR No. 92, dated 16.04.2008 under Section 489-F, PPC at Police Station Pindi Gheb, district Attock, with an allegation, in brief, that on 12.06.2007 Ghulam Mujtaba, respondent/ accused, gave him a cheque of Rs.
4,35,000/- against his liability, which on its presentation before Muslim Commercial Bank, Pindi Gheb Branch, was dishonoured.
2. On 27.04.2008 Ghulam Mujtaba, accused, was arrested in the case. He remained on physical remand for four days with the Investigating Officer. On 26.04.2008, the Investigator produced Ghulam Mujtaba, accused, before Raja Muhammad Shafique, the then learned Judicial Magistrate Section 30, Pindi Gheb, District Attock, with a request for his judicial remand. The learned Magistrate turned down the police request and discharged the accused. For facility of reference the discharge order, now under challenge at the instance of complainant, is reproduced in verbatim:-- "Learned counsel for the accused while opposing judicial remand pointed out that the Ordinance stands repealed vide-- 2005 YLR page 1565 and no new Ordinance was promulgated nor the Ordinance was put before the Legislatures for Act. Moreso, there is inordinate delay of 10 months in lodging the FIR, which vitiate even the solemn transaction. Even otherwise, the dispute between the parties is clearly that of civil nature and efficacious remedy is available to the complainant to bring a suit for recovery. Hence the remand is declined and the accused discharged."
3. Learned counsel for the petitioner, complainant has contended that Section 489-F, PPC is very much alive as the same has been protected under the provisions of Article 270-AA of the Constitution of Islamic Republic of Pakistan, 1973 as amended by 17th Amendment through Act II of 2003 promulgated on 31.12.2003.
4. On the other hand, learned counsel for the respondent/accused has supported the impugned order with the plea that Section 489-F, PPC was brought on the Statute Book through an Ordinance dated 25.10.2002, which was not laid before the Legislature within prescribed period of four months and thus the Ordinance stood repealed automatically on 24.02.2003.
5. The President of Pakistan promulgated the Ordinance in exercise *$f his powers under Provisional Constitution Order No. 1 of 1999 read with Provisional .Constitution (Amendment) Order 9 of 1999. It cannot be said on any legal or factual ground that the Ordinance was promulgated by the President in exercise of his powers under Article 89 of the Constitution. The Constitution Order No, 1 of 1999, referred to above was promulgated on 14.10.1999 by means of which the operation of Article 89 of the Constitution was held in abeyance and was revived by the President through Notification dated 16.11.2002. As Section 489-F, PPC. Was brought on the-Statute Book through the Ordinance promulgated by the President in exercise of powers under the Provisional Constitution Order, therefore, it was not required to be laid, before the Legislature to make it an Act of the Parliament.
For ready' reference I reproduce below the key lines and relevant part of Criminal Law (Amendment) Ordinance No. LXXXV of 2002:- "Whereas it is expedient further to amend the. Pakistan Penal. Code (Act XLV of 1860) and the Code of; Criminal Procedure, 1898 (Act V of 1898) for the purposes hereinafter appearing; And whereas the President is satisfied that circumstances exist which render it necessary to taker immediate action.
Now, therefore, in pursuance of Proclamation of Emergency of the fourteenth day of October. 1999.
And the Provisional Constitution Order No. 1 of 1999. Read with the Provisional Constitution (Amendment) Order No. 9 of 1999, and in exercise of all powers'" enabling him in that behalf, the President of the Islamic Republic of Pakistan is1 pleased to make and promulgate the following Ordinance:-
1. Short title and commencement.-(1) This Ordinance may be called the Criminal Law (Amendment) Ordinance, 2002.
(2) It shall come into force at one..'
2. " Insertion of new Section 489--F. Act XLV of 1860. In the Pakistan Penal Code (XLV of 1860), after Section 489-E,~the following^new Section shall be inserted, namely:-- - "489F. 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 honoring the cheque."...
It is" manifest from a bare reading of Criminal Law (Amendment) Ordinance LXXXV of 2002, reproduced above that Section 489-F had been inserted in the Pakistan Penal Code, 1860 in pursuance of Proclamation of Emergency on ^4th day of October, ,1999 and the Provisional Constitution Order No1 of 1999 read with the Provisional Constitution (Amendment) Order oM999.
Article 5-A(1) of the Provisional Constitution- Order, 1999 clearly lays down that an Ordinance promulgated by the President- or by the Governors of the Provinces shall not be subject to the limitation as to its duration prescribed in the Constitution. In this view of the matter, the learned Judicial Magistrate erred in law while holding that the Ordinance whereby Section 489-F, PPG was introduced elapsed on expiry of target date.
7. The provisions of Article 89 of the Constitution were revived through Notification published in Official Gazette on 16.11.2002. Legislation through Ordinances made from 12.10.1999 to 21.08.i2002 was saved and protected v/de Article 270-AA(2) of the Legal Framework Order, 2002, which reads as under:--
(2) All orders made, proceedings taken, appointments made, including secondment and deputations, and acts done by any authority, or by any person, which were made, taken or done, or purported to have' been made, taken or done, between the twelfth day of October, one thousand nine hundred and ninety-nine, and the date on which this Article comes into force (both days inclusive), In exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Chief Executive's Orders, enactments, notifications, rules, orders, bye-laws, or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court or forum on any ground whatsoever." Above-said laws made in-between 12.10.1999 to 31.12.2003 were affirmed through 17th Amendment in the Constitution on 31.12.2003.
Article 270-AA of the Constitution, which validated the laws for the period in question including the Ordinance whereby Section 489-F, PPG was introduced, is reproduced, as under:- 270-AA. Validation and affirmation of laws etc. - (1) The Proclamation of Emergency of the fourteenth day of October, 1999, all President's Orders, Ordinances, Chief Executive's Orders, including the Provisional Constitution Order No. 1 of 1999, the Oath of Office (Judges) Order, 2000 (No. 1 o(, 2000), Chief Executive's Order No. 12 of 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive's Order No. 24 of 2002, the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No. 29 of 2002) the Legal Framework (Second Amendment) Order, 2002 (Chief Executive's Order No. 32 of 2002) and all other laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the date on which this Article comes into force (both days inclusive), having been duly made are accordingly affirmed, adopted and declared to have been validly made by the competent Authority and notwithstanding anything contained in the Constitution shall not be called in question in any Court or forum on any ground whatsoever."
8. A combined examination of the Provisional Constitution Order No. 1 of 1999; (2) Provisional Constitution (Amendment) Order 9 of 1999; (3) Criminal Law (Amendment) Ordinance No. LXXXV, 2002; (4) Article 270- AA(2) of the Legal Framework Order, 2002 and (5) Article 270-AA of the Constitution as amended by 17th Amendment would provide a basis to hold that Section 489-F, PPC is alive. I am also supported in my view by the case-law laid down by a learned Division Bench of this Court in case Ch. Zulifgar Ali v. Chairman NAB and others (PLD 2003 Lahore 593).
9. Delay in lodging the FIR; civil nature of the controversy between the parties and. Availability of alternate remedy to the complainant were also additional reasons, which weighed with the learned Area Magistrate while passing the discharge order. The case was still under investigation, when arrested accused was produced before the Area Magistrate for his judicial remand. Before submission of challan in Court and taking cognizance of the offence, it was not permissible for the Area Magistrate to examine and analyze the evidence with reference to delay in lodging the FIR by holding mini trial of the case before the inception of regular trial.- Had the Area Magistrate gone through the provisions of Section 489-F, PPC, he would not have observed that civil nature of the dispute estopped the complainant to invoke criminal law. Section 489-F, PPC clearly lays down that whoever dishonestly issues a cheque towards repayment of a loan or fulfilment of an obligation is liable to face the legal consequences on its being dishonoured. Issuance of a cheque towards repayment of a loan or fulfilment of an obligation is primarily a civil matter. Object of Section 489-F, PPC is not to affect recovery of the amount in question under the dishonoured cheque. This penal provision of law has been brought on the Statute Book in order to punish a person, who dishonestly issues a cheque with reference to his civil liability. Similarly, availability of an alternate remedy to the complainant is no ground to discharge the accused because the aggrieved complainant can invoke civil and criminal law simultaneously.
10. The view of Area Magistrate that after expiry of period of four months, the Criminal Law (Amendment) Ordinance of 2002, through which Section 489-F...PPC had been inserted in Pakistan Penal Code, had died automatically, was also not approved and endorsed by a Division Bench of this Court in Ch: Zulifqar Ali's case supra. At the cost of repetition, I must say that the Parliament validated and affirmed the Ordinance and therefore, it was not required to be re-promulgated.
11. For the foregoing reasons, the impugned discharge order being illegal and without lawful authority cannot be allowed to hold the field., Consequently, I accept this Constitutional petition, set aside the impugned order of /'.Rea Magistrate, Pindi Gheb and restore the position of the case, which existed on 25.04.2008. The Police request for judicial remand of the arrested accused will be deemed as pending before the Area Magistrate for its disposal in accordance with law.
12. A copy of this judgment, may be sent to the learned Area Magistrate through the learned Sessions Judge, Attack advising him to update his legal knowledge.