' IJAZ UL AHSAN, J.---Through this petition, the petitioner challenges an order dated 17-7-2009 passed by the learned Additional Sessions Judge, Okara. Through the impugned order, a Criminal Revision filed by respondent No,3 was partially allowed and it was ordered that the private criminal complaint to the extent of the petitioner shall remain pending before the Area Magistrate, who shall adopt requisite measures in accordance with law to procure the attendance of the petitioner to face trial. It may be pointed out that the revision petition to the extent of the other accused/respondents shall dismissed and the order dated 12-11-2008 passed by the learned Magistrate 1st Class, Okara was upheld.
2. The brief facts of the case are that the petitioner was married to respondent No,3 on 8-2-2004.
Subsequently, she went to England with her father. The petitioner had a PLS Account No,31425-1 with IBL Mandi Road Branch, Okara. Before proceeding to England, the petitioner handed over her cheque book to respondent No,3 for closing her account. The account was accordingly closed on 31-5-2004. It appears that the relationship between the parties did not remain cordial. Therefore, the petitioner left the house of respondent No,3 and returned to the house of her parents. On 28-1- 2006, the petitioner filed a suit for dissolution of the marriage on the basis of Khula. Respondent No,3 was served and was represented before the learned Judge Family Court. However, vide Order dated 8-5-2006, the suit for dissolution of marriage was decreed.
3. It is alleged that the cheque book of the petitioner, which was in possession of respondent No,3 was used by him to prepare a forged cheque for a sum of Rs,500,000 dated 20-10-2007. The same was presented to the bank on 25-10-2007, but the same was dishonoured. The reason given on the dishonour slip dated 25th October, 2007 was, "insufficient funds". It appears that the cheque was again presented the next day i.e, 26th October, 2007. This time, it was returned with the remarks, "account closed".
4. On 27-10-2007, respondent No,3 lodged F.I.R. No,763/07 under section 489-F, P.P.C., P.S. A-Division, Okara against the petitioner, her father and three of her brothers. The Investigating Officer summoned the parties, investigated the matter and came to the conclusion that the matter relates to a civil dispute between the parties, respondent No,3 had forged signatures of the petitioner, which have been confirmed by the concerned bank. He prepared a cancellation report and sent it to S.P. (Investigation), Okara, who referred the same to DPO, Okara for cancellation of the F.I.R.
5. Respondent No,3 was dissatisfied with the investigation, therefore, he filed a private complaint No,219/08 before the Area Magistrate, Okara against the petitioner and 4 others. After recording cursory evidence of respondent No,3 and two of his witnesses, namely, Tariq Aziz and Irfan Ali, the learned Area Magistrate came to the conclusion that the evidence of the complaint was not credible. He, therefore, proceeded to dismiss the private complaint. Respondent No,3 challenged the said order by way of Criminal Revision. Vide order dated 17-7-2009, a learned Additional Sessions Judge, Okara, who heard the revision, upheld the order of the Magistrate to the extent of the father and brothers of the petitioner. However, he set aside the order to the extent of the petitioner with a direction that the criminal complaint shall remain pending before the Area Magistrate, who shall adopt measures in accordance with law to procure her attendance to face trial. The petitioner has challenged the said order through this petition.
6. The learned counsel for the petitioner submits that the complaint was patently mala fide and filed to harass and black-mail the petitioner. He submits that the cheque book of the petitioner was in custody of respondent No,3, who had forged her signatures on the cheque book in question and submitted the same for encashment against an account, which had already been closed. He further submits that there was no credible evidence available on record indicating commission of any offence by the petitioner. He maintains that a perusal of the statement of respondent No,3 as well as his witnesses shows that the stance taken by them was that the petitioner had allegedly stolen cash and gold ornaments worth Rs,500,000 from the house of respondent No,3. Upon being confronted, the petitioner and the other members of her family agreed to return the stolen property, subject to the condition that respondent No,3 would divorce her. Further, respondent No,3 divorced her in the presence of witnesses on 20-10-2007 and simultaneously of her own free will petitioner issued a cheque of Rs,500,000 in favour of respondent No,3. The learned counsel points out that the story is belied by the fact that the marriage between the parties also stood dissolved by virtue of a decree for dissolution of marriage passed by a Family Court at Lahore on 8-5-2006 i.e, more than 1-1/2 year before the cheque in question was allegedly issued. Therefore, story given in the private complaint was patently false and incorrect and was rightly disbelieved by the police as well as by the Area Magistrate. He further points out that the signatures of the petitioner in cheque were found to be forged not only during investigation, but also by the concerned bank, who issued certificate in this regard. He finally points out that the mala fides of respondent No,3 is evident from the fact that F.I.R. No,763/07 was lodged on 27-10-2007, which was one day before the petitioner was to contract a second marriage, which was solemnized on 28-10-2007. He finally argues that the learned Additional Sessions Judge did not take due notice of the aforesaid facts and recorded findings on the basis of conjucture and assumptions, which were not supported by the record. Consequently, order of the revisional court is not sustainable.
7. The learned counsel for respondent No,3 on the other hand has supported the order of the revisional court. He submits that the question whether or not the signatures of the petitioner have been forged, is a question requiring recording of evidence. Therefore, the Magistrate erred in law in dismissing the complaint after recording the cursory evidence. He submits that the evidence produced by respondent No,3 was credible and respondent No,3 had a right to get the matter adjudicated through a trial.
8. I have heard the learned counsel for the parties and gone through the record.
9. The fundamental question requiring determination by this Court is whether the Area Magistrate, was justified in disbelieving the cursory evidence produced by the complainant and recording a finding that it was not credible. On hearing the arguments of the parties and going through the record; I found that the answer to the afore-noted question is to be in the affirmative for the following reasons:--
(i) Admittedly, Account No,31425-i with HBL Mandi Road Branch, Okara, which was opened in the name 'of the petitioner was closed on 31st May, 2009 with zero balance as is evident from a copy or the account statement, which was furnished by the concerned bank. Therefore, the version of the petitioner that her cheque book remained with respondent No,3, her ex-husband, who forged a cheque to harass and black-mail her, carries weight and is supported by the fact that the Investigating Officer as well as the bank confirmed that the signatures on the cheque were forged and did not match her specimen signatures available with the bank. The disputed cheque is also available on the record of this petition. In exercise of my powers under Article 84 of the Qanun-e- Shahadat Order, I have compared the signatures on the cheque appearing at page-37 of the file with the signatures of the petitioner in order-sheet of the learned Family Judge, Lahore, appearing in page-13 of the file. The said comparison clearly indicates that the signatures of the petitioner on the cheque match her signatures in the order-sheet, which were made before the Court on the date of hearing i.e, 8-5-2006.
(ii) There are material discrepancies between the version given by the complainant/respondent No,3 in the F.I.R. And the complaint filed by respondent No,3. While in the F.I.R. It was stated, that the petitioner had stolen cash and jewelry worth Rs,500,000 from the house of respondent No,3, on discovering of which respondent No,3 along with 4 other constituted a panchayat and went to the petitioner's house, claimed return of the stolen goods, whereupon on 20-10-2007, the petitioner issued a cheque for Rs,500,000, which has been dishonoured. On the contrary, in the complaint as well as the cursory evidence, a different version was given to the fact that the petitioner was still in the house of the complainant/respondent No,3, when she allegedly stole 20 tolas of gold and Rs,10,000 in cash. When she was confronted with the same, she denied the allegation, however, when other members of the family also confirmed the theft, the petitioner asked for a divorce.
Thereafter, a meeting of certain members of the family of the petitioner as well as that of the respondent was called, in which it was agreed that respondent No,3 would divorce the petitioner and the petitioner would pay a sum of Rs,500,000 to respondent No,3. As a result of the said meeting, the petitioner allegedly issued the disputed cheque of Rs,500,000 in favour of respondent No,3 and the other members of her family stood guarantors that the said amount would be paid.
Respondent No,3 further claimed that on the said basis, he appeared before the Judge Family Court and made a statement that he had divorced the petitioner.
(iii) The above version is falsified by the record itself. It is clear and obvious from the record that the cheque in question bears the date 20-10-2007, while the Judge Family Court issued a decree of dissolution of marriage on 8-5-2006 i.e, more than 1-1/2 years before the cheque in question had been issued. Therefore, on the face of it, the version given in the complaint is false and fabricated.
The cursory evidence produced by respondent No,3 and the statement of Tariq Azeem and Irfan Ali made before the Area Magistrate, also given the version that respondent No,3 divorced the petitioner in the presence of the meeting that had assembled on 20-10-2007, when the cheque in question was issued in lieu of respondent No,3 divorcing the petitioner. The said assertion is falsified by the record in view of the judgment dated 8-5-2006, whereby the learned Judge Family Court, Lahore dissolved the marriage on the basis of Khula vide his order dated 8-5-2006. Therefore, there was no occasion for the petitioner to issue a cheque 1-1/2 years later in lieu of divorce being pronounced by respondent No,3 on her in view of the fact that the marriage already stood dissolved.
(iv) On perusal of the order-sheet of the learned trial Court, which has also been placed on record, clearly indicates that respondent No,3 never made any statement before the said court as alleged by him. Although, he was represented before the Family Court by a counsel, the marriage was dissolved on the basis of a statement made by the petitioner that she was unwilling to reconcile and wanted dissolution of marriage on the ground of Khula. On the basis of the said statement an order was recorded to the effect that in terms of the statement of the respondent efforts for reconciliation had failed, therefore, the suit was decreed. Respondent No,3 was not only aware of the said fact, but misstated the same before the Area Magistrate in order to make out a case on the basis of false and incorrect facts.
(v) It is also significant to note that respondent No,3 has also filed a suit under Order XXXVII, Rules .1 and 2, C.P.C. For recovery of the afore-noted amount of Rs,500,000, a copy of the suit has been attached with this petition. A perusal of the complaint indicates that a totally different version insofar as it has been alleged in paragraph-4 of the complaint that the petitioner has stolen 20 tolas gold and Rs,10,000, on discovery of which she demanded divorce from respondent No,3.
Consequently, a meeting of both families was called and it was agreed that the petitioner would return Rs,500,000, provided respondent No,3 would divorce her. Consequently, the petitioner issued a cheque of Rs,500,000 and believing that the cheque would be encashed respondent No,3 made a statement before the learned Judge Family Court, Lahore and thereby divorced her.
(vi) As discussed above, the said statement is factually incorrect and not only contrary to the statement made by respondent No,3 and his witnesses before the Area Magistrate, but is also contradicted by respondent No,3, which shows that the cheque in question was issued on 20-10- 2007, while marriage stood dissolved by virtue of the judgment of the learned Family Court on 8-5- 2006.
(vii) I find substance in the arguments of the learned counsel for the petitioner that the complaint has been filed to victimize and harass the petitioner in view of the fact that the cheque was dated 20-10-2007, which was presented twice on 25-10-2007 and 26-10-2007 and the F.I.R. Was lodged on 27-10-2007, knowing that the petitioner was getting re-married on 28-10-2007. This sequence of facts clearly points towards the intent to harass, intimidate and victimize the petitioner. Therefore, in my opinion, the learned Area Magistrate had given reason and lawful justification to record the finding that the cursory evidence of the complainant was not credible.
(viii)I find that continuance of proceedings before the Area Magistrate would be a futile exercise, wastage of time and gross abuse of the process of the Court. On the basis of admitted facts, which are daily supported by the record and convinced that no offence is made out and it would amount to abuse of the process of law to allow the prosecution to continue with the trial. I am fortified in coming to the above conclusions by MIRAJ KHAN v. GUL AHMED and 3 others (2000 SCM R 122), MAQBOOL REHMAN v. THE STATE and others (2002 SCM R 1076) and MUHAMMAD FIAZ KHAN v. AJMER KHAN and another (2010 SCM R 105). In Muhammad Fiaz Khan's case Ch. Ijaz Ahmed, J. As he then was, writing before the Court held as follows:- "It is settled principle of law that appreciation of evidence at preliminary inquiry with the yardstick of trial Court is not the, purpose under section 202. The trial Court has to believe only to see a prima facie case is to be made out or not that is why full dress rehearsal of trial is not possible.
This is the general principle with regard to examining the evidence on record before issuing process under section 204, Cr. P. C. Section 202 falls under Chapter XVI of Criminal Procedure Code. Therefore, the scope of this section is to separate unfounded from substantial cases at the outset at the initial stages that is why command of the section bound the Magistrate who has to satisfy himself before issuing of process to the respondent/accused. The object and scope of this section are two fold which are as follows:
(i) to allow free and fair opportunity to complainant to produce some evidence to make out grounds for issuing processes against accused. It is the duty of Magistrate to scrutinize contents of complaint, nature of allegations made therein, material in support of accusation.
(ii) Object intended to be achieved, possibility of victimization and harassment, if any to ensure himself that no 'innocent person against whom all allegations are levelled should suffer ordeal of protracted, time consuming and cumbersome process of law".
' The same view was given in Muhammad Nawaz's case (2000 SCM R 1904).
10. For the reasons recorded above, this petition is allowed, the impugned order dated 17-7-2009 passed by the learned Additional Sessions Judge, Okara is set aside. In result, proceedings pending before respondent No,4 Area Magistrate, Okara shall stand quashed.