' MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---In this case petitioners have sought quashment of an F.I.R. No.2 of 2013 lodged with Police Station Chamaling, District Loralai, under sections 419, 420, 471, 489-F read with section 34 of the Pakistan Penal Code ("P.P.C"), registered against them at the instance of complainant Haji Ghous-ud-Din.
2. The facts on having a glance over a record of the case are that complainant is owner of land meant for coal mining in Chamaling area; the petitioners have to pay a 5 % commission on total value of excavated coal. In lieu of outstanding liability a cheque in favour of the complainant amounting to Rs.1,217,750 was issued by Ain-ud-Din (Petitioner No.2) being manager at the instance of Ubaidullah (petitioner No.1/Contractor). On dishonouring of a cheque in question, the petitioners were booked in the aforesaid criminal case.
3. Mr. Khushal Khan Kasi Advocate for the Petitioners inter alia contended that the parties were not strangers to each other. The outstanding liability was created due to contractual obligation and any breach does not constitute an offence. He produced a bank deposit receipt of Rs.1,589,345 dated 7-11-2012 in favour of complainant. He stated that payment was made good and any trial would be a futile exercise, therefore, proceeding initiated is liable to be quashed.
4. Barister Amanullah Achakzai, learned counsel for the complainant in rebuttal opposed the plea and stated that out of total outstanding amount of Rs.4,000,000, an amount of Rs.1,589,345 was deposited at belated stage just to make a plausible defence in intended criminal proceedings and said volume of outstanding liability is evident from the contents of the F.I.R. He pointed out that earlier the petitioners were admitted to protective bail by this court, and instead of surrendering before the concerned court they have filed the instant petition. The Challan of the case has already been submitted before the learned Judicial Magistrate Loralai, since the petitioners had an alternative remedy before the trial Court; therefore, they are not entitled for the relief claimed.
5. Mr. Abdul Karim Malghani, Advocate appearing for the State, urged that petitioners being fugitive of law are not entitled to any relief. The prayer clause made in the petition is equal to quashment of F.I.R. Since there is sufficient material prima facie connecting the petitioners in commission of the offence, therefore, he finally stressed for dismissal of the petition.
6. I have given my anxious view to the arguments of the learned counsel for the parties and perused the record. Although, the business relationship between the parties was not disputed, the facts narrated in the F.I.R. Attract the mischief of section 489-F, P.P.C., which relates to dishonestly issuing a cheque. The perusal of prayer clause reveals that a quashment of proceeding initiated on the basis of F.I.R. Is questioned in the instant case.
7. The petitioner's case is based on the strength of depositing an amount of Rs.1,589,348 dated 7-11- 2012, in favour of complainant. On the pretext, that payment was made good, no obligation is remained unattended and the dispute between the parties relates to the breach of civil obligation on the basis whereof, no criminal proceeding could be launched.
8. Before dilating upon the contention put forth by the learned counsel for the parties, it would be advantageous to ponder over the provision of section 489-F, P.P.C., which runs as under:-- "[489-F. Dishonestly issuing a cheque. Whoever dishonestly issues a cheque towards repayment of a loan or fulfilment of an obligation, which is dishonuored 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 arrangement with his bank to ensure that the cheque would be honored and that the bank was at fault in not honouring the cheque.]"
' If the plea raised by the petitioners is accepted, the provision of section 489-F, P.P.C. Will become redundant. The language in provision (supra) itself, speaks about fulfilment of an obligation without being distinguished as of civil or criminal nature. A cheque is always issued in terms of civil obligation and if dishonoured, it would turn into criminal offence.
9. The petitioners were admitted to protective bail vide this court order dated 6-8-2013 in Criminal Bail Application No.395 of 2013 for a period of two weeks i.e. Till 22-8-2013. In this case on three consecutive dates the counsel for the petitioners was directed to produce the petitioners but they did not turn up. When inquired from the office, it further revealed that the petitioners did not furnish the requisite surety bond and shield of protective bail had been gone away on expiry of stipulation.
The petitioners_ instead of surrendering before the concerned court within the stipulated period filed the instant petition.
10. Having considered the matter from all angels, I find no force in contention put forth on behalf of the petitioners and in view rendered hereinabove, I am fortified on dictum laid down by the Hon'ble Apex Court in judgment of Bashir Ahmed v. Zafar-ul-Islam and others reported in PLD 2004 SC 298.
Wherein, the correct import of provision of section 561-A, Cr.P.C. Had been summarized as under:-- "(i) The said provision should never be understood to provide an additional or an alternate remedy nor could the same be used to override the express provisions of law;
(ii) the said powers can ordinarily be exercised only where no provision exists in the code to cater for a situation where the code offers no remedy for the redress of a grievance;
(iii) inherent power can be invoked to make a departure from the normal course prescribed by law only and only in exceptional cases of extraordinary nature and reasons must be offered to justify such a deviation; and
(iv) in the matter of quashing criminal proceedings, the trial must ordinarily be permitted to take its regular course envisaged by law and provision of section 561-A, Cr.P.C. Should be invoked only in exceptional cases for reasons to be recorded."
11. It is also settled law that criminal proceeding are not barred in presence of civil proceedings, thus civil and criminal proceedings can be proceeded sim ltaneously, a question of criminal liability cannot be allowed to mix with a breach of civil obligation, both wrongs being distinguishable in nature can be initiated at the same time. Reference is made to the following judgment of the hon'ble Supreme Court of Pakistan:--- ' Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCM R 1192.
' Talib Hussain v. Anar Gul Khan and 4 others 1993 SCM R 2177 and Deputy Inspector-General of Police v. Anees-ur-Rebman Khan PLD 1985 SC 134.
12. If the contents of the petition, the F.I.R. And the arguments advanced by the learned counsel for the parties were put in juxtaposition, then it would bring the case of the petitioners in the area of disputed question of fact, which could not be decided at this stage without leading the evidence.
' The record reveals that after completion of formal investigation, challan has been submitted against the petitioner, thus, at this stage any interference by this court while exercising inherent jurisdiction, which can only be exercised in extraordinary circumstances, would amount to preempting the powers of the trial Court. Even otherwise, the petitioners had alternative remedy viz. Before, the trial Court under Criminal Procedure Code ("Cr.P.C.") 1898 i.e. Section 249-A, Cr . P. C . I am mindful of the fact that the petitioners have been admitted to protective bail by this court but they are not ready to surrender before the trial Court, an inference could easily be drawn that the petitioners are not ready to submit their will before the court of law but have tried to make a clever attempt to deceive the law, therefore, on this ground too being fugitive of law are not entitled for the relief claimed.
' What emerges from the above discussion is that there is nothing wrong with the proceedings initiated at the instance of the complainant qua registration of F.I.R.
' In view of the matter, finding no substance in this petition the same is dismissed.
' However, observation made herein are purely tentative in nature and trial Court shall not be influenced by observation made herein above and shall proceed with the matter and decide the base on its own merits strictly in accordance with law.