Nisar Hussain Khan, J.--This and connected W.P. No, 1288P/2016 titled Haji Lal Muhammad vs. The State etc, are going to be disposed of through this common judgment on account of common questions of law involved, though with some different facts, but between the same parties.
2. Both these petitions have been filed by Haji Lal Muhammad. In W.P. No, 1287-P/2016, he has sought quashment of FIR NO. 389 dated, 28.3.2016 registered under Sections 489-F/406/34, PPC at Police Station Shaheed Gulfat Hussain, Peshawar. It is stated in the petition that petitioner is a businessm an by profession as Vice Chairman of Rice Exporters Association of Pakistan; that Respondent No, 6 Muhammad Ahmad and his brother Shabir supplied rice from Punjab to different dealers at Peshawar, namely Ijaz Ahmad S/o Abdul Latif Shah and Riaz Hussain S/O Gul Nabi; that petitioner being office bearer of the Association acts as arbitrator in matters of money disputes between the businessm en or dealers and thad resolved number of disputes; that Respondent No, 6 Muhammad Ahmad filed complaint against Taj Muhammad before the Chairman Dispute- Resolution Council of Police Station Gulbahar, Peshawar. The Dispute Resolution Council found the complaint to be of civil nature and directed the complainant to approach. The proper forum; that after 10 months, review application was filed which was allowed and petitioner and Taj Muhammad were directed to recover the amount from Ijaz Ahmad acid Riaz Hussain within a month and in case of default, the SHO Respondent No, 2 may proceed with them; that petitioner aggrieved of such direction, filed civil suit which is pending adjudication; that during pendency of civil suit, SHO P.S. Shaheed Gulfat Husssin registered FIR No, 337, dated 15.3.2016 under Sections 506/109/34, PPC which is subject matter of W.P. No, 1288-P/2016; that latey on another FIR No, 389 dated 28.3.2016 was registered at the same Police Station by the SHO under Sections 489-F/406/34; PPC against petitioner and Taj Muhammad on direction of Chairman DRC which is subject matter of instant.W.P.
No, 1287-P/2016.
3. Petitioner has sought quashment of FIR No, 389 in the instant petition being illegal, unlawful and result of illegal exercise of power because the dispute is purely of civil nature which has been converted into criminal proceedings just to humiliate, harass and pressurize the petitioner; that no cheque was produced before the Dispute Resolution Council during the pendency of the complaint. Whereas Dispute Resolution Council has no authority to issue direction for registration of case; that no offence has been constituted in view of the facts divulged in the FIR; hence he be protected against illegal exercise of powers at the hands of respondents, particularly, SHO concerned police station.
4. In W.P. No, 1288-P/2016, petitioner Haji Lal Muhammad averred same background of his social status and his relationship with the complainant as of a businessmen and pendency of complaint before the Dispute Resolution Council and consequently filing of civil suit before the civil Court and has sought quashment of FIR No, 337, dated 15.3.2016 registered against him under Section 506/109/34, PPC.
5. We have heard learned counsel for the parties at length and have gone through the record with their valuable assistance.
6. Firstly, we take up W.P. No, 1287 of 2016 wherein quashment of FIR No, 389 has been sought. We are least concerned with the status or position of the petitioner and would confine ourselves to determine as to whether any offence has been constituted as per admitted record and consequently whether FIR could have legally been registered. Relation between the parties as businessm en involved in the business of rice is not disputed. It appears that money dispute erupted between some businessm en, for resolution of which Dispute Resolution Council of P.S. Gulfat Hussain was approached. As per Annexure-G, the order of Dispute-Resolution Council dated 13.4.2015, the Council concluded that it was money dispute which was purely of civil nature, hence parties were advised/recommended to have recourse to the Court of law and thus the'matter was closed by the Dispute Resolution Council. However, record suggests particularly Annexure-H, that earlier order was reviewed after ten months by the Dispute Resolution Council on 13.2.2016. The reviewed order of the Dispute Resolution Council states that complainant has transacted with the businessm en of KPK in rice and Haji Lal Muhammad took responsibility of Rs, 35 lac being the consideration of rice sold to Riaz Hussain but could not be paid. The matter was reported in P.S. Hashtnagri on 19.6.2010 and it was disposed of on the commitment that HajiLal Muhammad shall recover the amount from Riaz Hussain and shall pay the same onward to complainant and to that end Haji Lal Muhammad picked up the rice from Godown of Riaz Hussain but amount was not paid to the complainant and the matter was put off. Finally it was concluded that the matter was decided on 13.4.2015 in haphazard manner and because actual facts were not brought before the jury members, thus the, earlier decision is recalled and Taj Nabi and Lal Muhammad were directed to pay the disputed amount within one month after recovery from Ejaz and Riaz Hussain. In case of default, complainant would be entitled to get a case registered in Police Station Hashtnagri against both the brokers for committing fraud and cheating. At the same time, SHO P.S. Hashtnagri was directed to register case on submission of complaint. Meanwhile Haji Lal Muhammad also filed suit for perpetual and mandatory injunction in the Court of Senior Civil Judge, Peshawar against Incharge Dispute Resolution Council of Police Station Shaheed Gulfat Hussain, Peshawar and 11 others including the members of the Dispute Resolution Council. We have with us FIR in question i,e, No, 389 on the file whereas record of the case could not be made available because learned AAG stated that it is not in the Police Station and might be pending before any Court which is not traceable.
7. Perusal of the FIR transpires that a letter was addressed by the Superintendent of Police City Peshawar to Deputy Superintendent of. Police, City Circle-11 Peshawar on 12.3.2016 with the direction that since accused Taj Nabi and Haji Lal Muhammad have failed to comply with the order of the Dispute Resolution Council regarding payment of disputed amount within the period of one month, so as per direction of the Dispute Resolution Council case be registered against both the accused.
Consequently impugned FIR was registered against petitioner and co-accused Taj Nabi because Lal . Muhammad refused to pay the amount whereas Taj Nabi issued a cheque No, 5106456 drawn at Bank Al-Habib, Ashraf Road Branch, Peshawar City, which was bounced for deficient amount. It appears that before registration of FIR, opinion of District Public Prosecutor was solicited which is not part of the record and both the counsel produced two orders; one is of Deputy Public Prosecutor of 24.5.2016 wherein he opined that the cheque was issued on 1.11.2010 and presented to the Bank for encashment on 22.12.2010 which was dishonoured for insufficient amount hence it does not attract Section 489-F, PPC, as the complainant slept over it for six years. Thus it would be more appropriate for complainant to approach the civil Court for recovery of amount. The District Public Prosecutor did not agree with the opinion of the Deputy Public Prosecutor and recommended registration of FIR under Section 489-F, PPC on 2.8.2016.
8. FIR in question has been registered under Sections 489-F and 406 read with 34, PPC. With the given backdrop, whether offence under Sections 489-F and 406, PPC had boon constituted or not.
Undisputedly, the cheque on the basis of which FIR in question has been registered was issued on 1.11.2010 and was presented to the Bank on 22.12.2010 and was dishonoured. Whereas FIR in question has been registered on 28.3.2016. Strangely enough FIR speaks that it has been registered on the opinion of the District Public Prosecutor but the opinion produced by both the counsels in Court is of 24.5.2016 and complainant's counsel relied upon the opinion of District Public Prosecutor which is of 2.6.2016. If it is so then how SHO could register the FIR on the basis of an opinion of District Public Prosecutor. On 28.3.2016 which was rendered on 2.6.2016 after a period of more than two months. It clearly reflects that FIR did not follow the opinion of the District Public Prosecutor but it was vice versa.
9. Other important aspect of the case is that FIR has been registered on the direction/recommendation of Dispute Resolution Council of the concerned Police Station. The Dispute, Resolution Councils are constituted under Article 168-A of Police Order, 2002. Article 168-A stipulates that. Provincial Police Officer for out. Of Court amicable settlement of petty nature cases may constitute Dispute so1i1tion Council at District, Sub-Division or Police Station level. Mandate of the Dispute Resolution Council is very much evident from the Article itself that it may intervene between the parties for amicable settlement of petty nature cases. The petty nature cases have been defined in explanation of the same Article which means and includes a small, minor, of less or inconsiderable importance which are going to affect amity in the society or may lead to provocation and may culminate into criminal offence. Case in hand was a dispute relating to millions of rupees which surely is not a petty nature case, so was not within the domain of Dispute Resolution Council. It was incumbent upon the Council to have declined to entertain such like application/complaint and advised all the parties to approach the civil Court. The council rightly passed the order on 13.4.2015, which was in accordance with the Mandate of Article 168-A. By reviewing that order on 13.2.2016 the Dispute Resolution Council has, exceeded its jurisdiction and transgressed its authority by directing the SHO concerned to register the case, in case of default of payment of the amount within a period of one month. By assuming power which was not vested, in them, members of the Dispute Resolution Council, have deprived the complainant from approaching the proper forum for recovery of amount, on one hand and have flouted the legal process, on the other. Beside that bare perusal of the order of Dispute Resolution Council dated 13.2.2016 reflect that there is no reference of any cheque issued in favour of the complainant, which under the garb of direction of Dispute Resolution Council, has been made subject matter in the questioned FIR.
9. Section 489-F, PPC provides punishment for dishonestly issuance of cheque towards repayment of loan or fulfillment of obligation which is dishonoured on presentation. As par record, cheque in question was not issued towards repayment of loan. Even if it is assumed that it was an obligation, when the drawer of the cheque, took responsibility of payment of the amount on behalf of the actual debtor, the question arises as to whether liability still subsists after six years of issuance of cheque. In this regard one has to revert to Limitation Act, 1908, the first schedule of which provides period of 3 years for recovery of all kinds of money, including a suit where the lender has given a cheque for the money, under Article 58. If any claim is laid beyond period prescribed. In the first schedule, before any Court of law, it shall be dismissed in terms of Section 3 of the Limitation Act. It follows that after passage, of 3 years, alleged liability/obligation, no more subsists against the drawer. Thus Section 489-F, PPC does not attract to the instant case, thanks to the indolent conduct of the complainant himself.
11. Similarly, for application of Section 406, PPC, one has .To revert to Section 405, PPC which is a defining clause of criminal breach of trust. It is primary requirement of Section 405, PPC that one has to be entrusted with property or with dominion over any property and he must have dishonestly misappropriated or converted to its own use or dishonestly used or disposed of that property in violation of any direction of law, prescribing the mode in which such trust is to be discharged. The entrustment of the property or any dominion over the property is sine qua now and raison d'etre for attraction of penal clause of Section 406, PPC. The allegations so levelled in the FIR are conspicuous from its narration that there is no such entrustment of any property or dominion over any property, to any one of the accused. Rather they were charged for not paying the money on behalf of actual debtor, on whose behalf they took the responsibility. So no offence under Section 406, PPC has been constituted. When so, SHO was, not supposed to register FIR.
Section 154, Cr.P.C. Enjoins the incharge of the Police Station to register a case relating to information of commission of cognizable offence. When no offence was constituted, registration of FIR was not only misuse but abuse of authority which cannot be countenanced when brought before the Court of law and it is tantamount to illegal exercise of power. Here question may arise that the Supreme Court time and again has observed that the High Court may not interfere for quashment of FIR at the investigation stage. There is no cavil to this proposition and we do respectfully follow that principle with all humility and submission. However, exceptions have also been provided in all those chain of judgments that when no offence as per allegation of the FIR is made out or when it has been registered by illegal exercise of authority, High Court may step in and quash the same to save the innocent from rigors of unjustified arrest, remand and incarceration. In this regard reliance may be placed on Director General FIA and others us. Kamran Iqbal and others (2016 SCM R 447).
12. Now coming to W.P. No, 1288-P/2016 vide which FIR No, 337 has been sought to be quashed. Bare perusal of FIR reflects that there are direct allegations against accused for criminal intimidation which requires investigation and may be decided by the competent Court of law after recording evidence. No question of law or illegal exorcise of authority has been pointed out in registration of the case. Hence, at this stage we would not interfere in the matter in hand for quashment of the FIR which may better be decided by the trial Court after recording evidence.
13. For the reasons discussed above, W.P. No, 1287-P/2016 is allowed and consequently FIR No, 389, dated 28.3.2016 of Police Station Shaheed Gulfat Hussain, District Peshawar, stands quashed. While connected W.P. No, 1288-P/2016 is dismissed.