' 1 to 4. Through this order, we intend to dispose of instant petition filed by M/s Trust Investment Bank Limited, a non-banking Finance Company, incorporated under the Companies Ordinance, 1984.
2. According to averments made in the memo of petition, petitioner initiated a scheme to generate sources and offered different recourses, mobilization scheme, etc, on profit and loss sharing basis.
Accordingly, in January, 2011 respondent No.2 approached the petitioner and invested Rs.150 Million, on agreed terms and conditions and petitioner issued TDR to respondent No.2. However, after expiry of its maturity, the petitioner on account of certain financial crises/complication could not arrange its return within time. Petitioner further averred that on account of illegal pressure and coercion, exerted by respondent No.2, petitioner's office issued nine cheques of Rs.166,091,507.00, and the respondent No.2 was required to first confirm and then deposit the cheques for clearance.
Petitioner further claimed that contrarily the respondent No.2 presented four cheques with Allied Bank Hasan Square Branch, Karachi, out of which two were returned with endorsement of insufficient funds. Consequently, on 13.1.2013, respondent No.5 lodged FIR No.17/2013 at Bhatti, Gulshan-e-Iqbal, Karachi.
3. Petitioner further claimed that, as the dispute with regard of payment of invested amount with profits accrued thereon was settled between the parties, police after due investigation filed a report recommending disposal of aforesaid FIR in A class but the learned Magistrate, respondent No.4, vide order dated 24.4.2013 declared the officers of the petitioner as absconder and kept the case on'dormant file, against which petitioner filed Cr. Misc. Application No.195 of 2013 and this Court vide order dated 25.7.2013 suspended the operation of aforesaid order passed by the Magistrate and issued notice to the respondents. SHO PS Aziz Bhatti, Gulshan-e-Iqbal, respondent No.3 herein, filed comments in aforesaid Criminal Misc. Application disclosing therein registration of two more criminal cases viz. FIRs No.371/2013 dated 5.8.2013 and 375/2013 dated 7.8.2013 on account of non-clearance of cheques No.1407617 dated 30.3.2013 and 1407618 dated 30.4.2013; and cheques No.1407619 dated 30.5.2013 and No.1407620 dated 30.6.2013, against the chairman and president of petitioner, inter alia, for committing fraud, etc. According to petitioner, the aforesaid two FIRs were lodged after passing of interim order by the learned Banking Court at Lahore in a suit filed by petitioner against the respondent No.2. Hence, instant petition seeking quashment of aforesaid three FIRs has been filed.
4. Learned counsel for the petitioner has contended that though on 25.3.2013 a settlement agreement was inked between the parties, the respondent Nos.2 and 6 with mala fide intention got registered the aforesaid two FIRs just to malign, harass and coerce the petitioner. According to him, though the respondent No.2 was aware that cheques could not be presented before the concerned Bank without first obtaining confirmation from the petitioner, he deliberately presented the cheques in question and got registered criminal cases against the petitioner. He further contended that though the I.O. After due investigation has submitted a report in A class but the learned Magistrate did not accept such report and without following the procedure as envisaged in Sections 87 and 88, Cr.P.C. Declared the officers of the petitioner as absconders. He further submitted that in the given facts and circumstances of the case, provisions of sections 489-F and 420, P.P.C. Are not attracted as, respondent No.2 has settled the matter with the petitioner and in any case these criminal cases would not end in conviction of the officers of the petitioner for none of them was personally responsible for payment. He also contended that continuance of criminal proceedings for civil liabilities for which a civil suit is pending before Banking Court at Lahore would amount to sheer abuse of process of Court, therefore, the FIRs be quashed.
5. Conversely, Mr. Munawar Malik, Advocate and Mr., Abdul Jabbar Qureshi, learned AAG, vehemently opposed the petition and argued that there is no bar if the criminal and civil proceedings are allowed to proceed simultaneously.
6. We have heard the learned counsel for the parties, AAG and scanned the available record. On 25.10.2002 Section 489-F, P.P.C. Was inserted in the Pakistan Penal Code, 1860, through Criminal (Amendment) Ordinance, 2002. Plain reading of Section 498-F shows that the offence has been made punishable on issuance of a cheque dishonestly towards payment of a loan or fulfillment of an obligation which is dishonoured on presentation. The words "whoever dishonestly issues a cheque" are of immense significance and mean that offence is constituted when a cheque is dishonestly issued. As to the orders passed by the learned Magistrate on a police report, there is no cavil to the proposition that police opinion is not binding on the Magistrate who has to apply his judicial mind while passing order. It is also settled principle of law that pendency of civil proceedings in relation to same transaction is not a legal 'bar to the maintainability of criminal proceedings and both proceedings can continue concurrently as conviction for a criminal offence is completely different matter from civil litigation and civil proceedings being a separate remedy under the law, criminal proceedings can be initiated side by side.
7. The question as to whether the relevant cheques were issued by the officers of the petitioner with dishonest intention and whether the private respondents have violated the settlement agreement necessarily call for holding of a factual inquiry, which exercise cannot be undertaken by this Court in the Petition filed under Article 199 of the Constitution, Moreover, the petitioner cannot invoke the constitutional jurisdiction of this Court as he has adequate alternate remedy available to him before the trial Court under Section 249-A/265- K of Cr.P.C. For seeking his premature acquittal. In the case of Seema Fareed v. State reported in 2008 SCM R 839 the Honourable Supreme Court has observed that:-- 'It is well-settled that, a criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction have been instituted it has never been considered to be a legal bar to the maintainability of criminal proceedings which can proceed concurrently because conviction for a criminal offence is altogether a different matter from the civil liability. While the spirit and purpose of criminal proceedings is to punish the offender for the commission of a crime the purpose behind the civil proceedings is to enforce civil rights arising out of contracts and in law both the proceedings can co-exist and proceed with simultaneously without any legal restriction"
8. In the case of Shah Sadiq v. Muhammad Ashiq reported in 2006 SCM R 276 the Honourable Supreme Court has observed that:-- '16. It is a settled proposition of law that when there are extraordinary circumstances, High Court is duty bound to protect life, liberty, honour and dignity of every citizen. It must, therefore, take extraordinary measurers specially when the statute law is not sufficient to meet a situation and provide protection to the citizens. It is here that the extraordinary jurisdiction under Article 199 of the Constitution must come to the aid of citizens."
"18. No doubt, exercise of jurisdiction under Article 199 of the Constitution is discretionary with the High Court but according to the principle laid down by the superior Courts, the discretionary powers must be exercised in good faith, fairly, justly and reasonably having regard to all relevant circumstances "
9. Since the respondent No.2 has made a huge investment of Rs. 150 Million and petitioner himself pleaded that unfortunately after expiry of TDR, petitioner could not arrange for return of outstanding amount and issued cheques towards discharge of his responsibility, which cheques on presentation were dishonourned, we, in the given circumstances, are of the considered view that instant petition merits no consideration.
10. There is yet another aspect of the case. On 23.7.2013 officers of the petitioner filed a Criminal Misc. Application seeking quashment of FIR No.17/2013 registered at PS Gulshan-e-Iqbal, Karachi, which is pending adjudication while Petitioner in instant petition, presented before this Court on 6.9.2013, inter alia, sought quashment of three FIRs, which also include FIR No.17/2013 registered at PS Gulshan-e-Iqbal, Karachi. The petitioner and its officers in fact have attempted to seek somewhat identical relief from two different proceedings, which is impermissible.
' Aforesaid are the reasons of our short order dated 7.9.2015, whereby we dismissed the petition along with pending misc. applications.