' Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 to impugn the order dated 15.7.2013 passed by the learned Ex-Officio Justice of the Peace Layyah on an application under Section 22-A and B of the Criminal Procedure Code 1898 lodged by Munawar Ahmad/Respondent No, 3 whereby SHO Police Station City Layyah/Respondent No, 2 was directed to register the criminal case against the petitioner.
2. Learned counsel for the petitioner argues that the learned Ex-Officio Justice of the Peace while passing the impugned order has altogether ignored the respondent's assertion in the petition under Section 22-A and B, Cr.P.C. That the impugned cheque was issued to him as guarantee relating to 'Qarz-e-Hasna' and that non-payment whereof entails civil liability instead of criminal liability; that the impugned order for registration of the criminal case against the petitioner in the circumstances of this case is against law and facts, untenable and liable to set aside.
3. Learned counsel for the respondent has opposed this petition with the contentions that since financial liability and issuance of the impugned cheque has been admitted by the petitioner therefore bouncing of the cheque attracts the cognizable offence under Section 489-F of the Pakistan Penal Code 1860 and that the learned Ex-Officio Justice of the Peace was well within his jurisdiction to pass the impugned order which does not suffer from any legal infirmity and that the petitioner has no case to invoke the constitutional jurisdiction of this Court.
4. Arguments heard. Record perused.
5. In terms of Section 22-A(6)(iii), Cr.P.C., Ex-Officio Justice of the Peace may issue appropriate directions to Police Authorities concerned on a complaint regarding non-registration of criminal case. There is no cavil to the proposition that the word may used in the above quoted provision of law confers discretionary power upon the Ex-Officio Justice of the Peace in this regard. No doubt Ex-Officio Justice of the Peace is obliged to exercise powers vested in him under the law in judicious manner with application of mind taking into consideration the facts and material of the case.
6. It will be expedient to reproduce Section 489-F of the, PPC, which reads as under: "489-F. Dishonestly issuing a cheque.--Whoever dishonestly issues a cheque towards repayment of a loan or fulfillment 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 bouncing the cheque"
' Bare reading of the aforementioned provision clearly manifests that dishonestly issuing of a cheque towards repayment of a loan or fulfillment of an obligation is sine qua non to attract the offence under Section 489-F of, PPC.
7. Contents of the petition under Section 22-A and B of the, Cr.P.C. Transpires that Munawar Ahmad respondent in Para No, 3 of the said application has categorically alleged that he had advanced a sum of Rs, 4,00,000/- as 'Qarz-e-Hasna' to the petitioner who issued the impugned cheque as guarantee in his favour. Under the Islamic Law 'Qarz-e-Hasna' is a special kind of loan returnable by the borrower on his acquiring the ability to repay the debt. This kind of loan is advanced on compassionate ground free from interest/mark-up and repayable as and when borrower is able to pay. Qarz-e-Hasna is the term used by Almighty Allah Himself in the Holy Quran as under:
(i) "Who is he that will loan to Allah, a beautiful loan (Qarz-e-Hasna) which Allah will double and multiply many times? It is Allah that gives (you) want or plenty and to Him shall your return" Surah Baqara (2:245).
(ii) "If you loan to Allah a beautiful loan, (Qarz-e-Hasna) He will double it to your (Credit) and He will grant you forgiveness; For Allah is most Ready to appreciate (Service), most forbearing." Surah Tughaban (64:17).
'Allama Abdullah Yousaf Ali in his translation of the Holy Quran has translated the term 'Qarz-e- Hasna' as a 'beautiful loan'. Muhammad Marmaduke Pickthall another renowned Scholar has translated the term 'Qarz-e-Hasna' as a 'goodly loan'. Both the expressions used by the above two Scholars in their translations of the Holy Quran have the same meanings. The Holy Quran used the term 'Qarz-e-Hasna' to connote spending in order to help and assist the religion. This assistance can be financial or otherwise. Needless to say that anything that be spent in the way of Allah is bestowed by Him. It is only because of His graciousness that He calls it a loan that we spend it in His way and He promises to return to us manifold. Bare reading of the above quoted verses of the Holy Quran clearly manifests that the expression 'Qarz-e-Hasna' signifies a loan given with sincerity and devotion. In ordinary practice Muslims use the expression of 'Qarz-e-Hasna' for the loan given and returnable in easy installments and within flexible time. In this case of 'Qarz-e-Hasna' issuing of a cheque as guarantee merely connotes an acknowledgement of civil liability in good faith. It I cannot be termed as dishonest issuance of the cheque in terms of Section 489-F of the, PPC.
Therefore bouncing of a cheque in such like cases does not constitute a criminal liability in terms of Section 489-F of the, PPC.
8. In view of the above, learned Ex-Officio Justice of the Peace erred in law while passing the impugned order dated 15.07.2013 and issuing direction to the SHO/Respondent No, 2 for registration of a criminal case against the petitioner. The impugned order therefore suffering from legal infirmity is untenable and amenable to the constitutional jurisdiction of this Court in terms of Article 199 of the Constitution of Islamic Republic of Pakistan 1973 is liable to set aside.
9. For what has been discussed above, this constitutional petition is allowed and the impugned order dated 15.07.2013 passed by the learned Ex-Officio Justice of the Peace is set aside. However, this order will have no affect qua any civil proceedings if lodged by Respondent No, 3 for recovery of the loan against the petitioner before the Court of competent jurisdiction.