Farrukh Gulzar Awan, J. Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner has assailed the legality of order dated 5.5.2015 passed by the learned Additional Sessions Judge/Ex-Officio Justice of Peace, Faisalabad whereby petition under Section 22-A & 22-B Cr.P.C. Filed by respondent No.5 was allowed and the SHO was directed to record the statement of the respondent No.5 and proceed further under Section 154 Cr.P.C.
2. Succinctly, the facts of the case are that Sabir Ali respondent No.3 submitted application under Section 22-A & 22-B Cr.P.C. Before the learned Ex-officio Justice of Peace/Additional Sessions Judge, Faisalabad wherein report was called from the police and after receipt of report, learned Additional Sessions Judge accepted the petition and directed the SHO concerned to record the statement of respondent No.5, if he approaches to him along with original cheque and dishonour slip and if the same discloses commission of a cognizable offence, to proceed further under Section 154 Cr.P.C.
3. Learned counsel for the petitioner has contended that the impugned order passed by the learned Court Ex-officio Justice of Peace is illegal, unlawful and against the facts and circumstances of the case; that prior to this application, respondent No.5 submitted another application for registration of criminal case against the petitioner before DSP Gulberg Circle, Faisalabad with the allegation that the present petitioner had received Rs.50000/- and a cheque of Rs.100,000/- on the pretext of sending Muhammad Adeel son of respondent No.5 abroad but on his failure, the petitioner issued the impugned cheque for the repayment of said amount but in the instant petition he has twisted that the impugned cheque was issued for the repayment of loan advanced by respondent No.5 to the petitioner having deep visiting terms with the petitioner; that the impugned cheque was not issued in favour of respondent No.5 rather it was ordered to "Pay Cash", therefore, no cognizable offence is made out and as such the impugned order is liable to be set aside.
4. Conversely, learned counsel for respondent No.5 has opposed this petition and it is contended that the petitioner issued the impugned cheque in his favour which on its presentation before the concerned bank was dishonoured and the natural consequences of the same is registration of case under Section 489-F PPC and that there is no illegality or irregularity in the impugned order, which is well reasoned, therefore, this petition is liable to be dismissed. However, learned A.A.G. Has conceded that the cheque in question is not in the name of respondent No.5 rather it is to "Pay Cash".
5. I have heard the learned counsel for the petitioner, learned counsel for respondent No.5, learned A.A.G. For the State and have also gone through the record.
6. The perusal of record shows that cheque bearing No.8857491 dated 04.10.2014 Muslim Commercial Bank Ltd., for the payment of Rs.150,000/- was issued to "Pay Cash" and it was not in the name of respondent No.5. There is nothing on record to show that the cheque in question was issued in favour of respondent No.5. Even otherwise, prior to the filing of petition under Section 22-A & 22-B Cr.P.C., respondent No.5 submitted an application to the DSP Gulberg Circle Faisalabad for the registration of case against the petitioner alleging therein that the present petitioner received an amount of Rs.50,000/- as well as a cheque of Rs.100,000/- for sending Muhammad Adeel son of respondent No.5 abroad (Italy) but thereafter, he refused to send the son of respondent No.5 abroad and in Panchayat he issued the cheque in question for the repayment of said amount, which was dishonoured on its presentation before the concerned bank.
7. Respondent No.5 submitted this petition under Section 22-A & 22-B Cr.P.C. For the registration of case against the present petitioner with the assertion that the petitioner borrowed Rs.150,000/- having family terms from respondent No.5 and for the repayment of said amount, he issued the cheque in question, which was dishonoured being Dormant Account.
8. In order to constitute offence under Section 489-F PPC, the application for the registration of case must show that the cheque was issued with dishonest intention and the purpose of issuance of cheque must be to repay loan or to fulfil an obligation i.e. Lawful transaction, which one binds a person to some performance. In such like cases requiring supporting documents i.e. Dishonouring slip and the cheque issued in favour of the complainant, learned Ex-officio Justice of Peace is bound not only to go through the contents of the application for the registration of case but also to see/examine the supporting documents to show as to whether the cheque was issued in favour of the complainant and that too for repayment of loan or fulfillment of an obligation, which legally binds a person to some performance through documentary proof.
9. Keeping in view the twisted stances of respondent No.5 as well as the cheque in question being issued to "Pay Cash", the learned Ex-Officio Justice of Peace has committed illegality and material irregularity while not considering the fact that the cheque was not issued in the name of respondent No.5 for the fulfilment of any obligation.
In view of above, the petition in hand is allowed and the impugned order dated 5.5.2015 is set aside.