MUHAMMAD SHAN GUL, J.---This order shall also decide Writ Petition No. 4720/2021/Bwp besides the titled petition as common questions of law and facts are involved in both these petitions.
2. Brief facts relevant for the disposal of the instant petitions are that respon dent No.4 issued cheques for repayment of amount to the petitioners which on presentation to the bank were dishonoured. The matter was reported to the police but in vain. The petitioners thereafter were constrained to file applications under section 22- A, Cr .P.C. before the learned Justice of Peace which were declined vide orders dated 09.04.2021.
3. These two petitions call in question orders dated, 09.04.2021 passed by a learned Justice of Peace whereby , despite the presence of applications disclosing the commission of a cognizable offence, the learned Justice of Peace proceeded to dismiss the applications filed by the petitioners on the premise that the accused is in the custody of National Accountability Bureau (NAB), Multan and since a Reference is pending against him, therefore, the petitioners are advised to approach the NAB authorities at Multan for the purpose of addressing their grievance.
4. Learned counsel for the petitioners submit on the strength of a Division Bench judgment of this Court reported as Malik Sohail Aslam v. Superintendent of Police (Operation), Lahore and 3 others (2017 YLR 1548 ) that section 489-F , P.P.C. is indeed attracted in the matter and since the commission of a cogni zable offence is clearly spelt out from the applications, there was no place in law for the Justice of Peace to refuse registration of a criminal case.
They also rely on the case of Abdul Rehman Malik v. Synthia D. Ritchie, Americans National and others (2020 SCMR 2037 ) to submit that the learned Justice of Peace or for that matter the SHO were denuded of any authority to refuse to order registration of criminal cases and there was no discretion left with either of them and that this inaction on their part is a legal omission that needs to be rectified in constitutional jurisdiction of this Court.
5. When this case was called in the morning, the learned law officer rightly pointed out that the presence of National Accountability Bureau was required so as for the Court to see whether the Reference pending before the Accountability Court at Multan against respondent No.4, in these petitions, had any nexus or was in anyway connected with the transaction or activity that had been made the basis of the applications filed by the petitioners.
Mr. Muhammad Arshad Qayyum, learned Special Prosecutor for NAB has very kindly appeared from Multan on a short notice and this Court appreciates his cooperation in this respect. He submits that respondent No.4 is the main accused of Reference No. 26-M/2019 pending before the Accountability Court at Multan. He further submits that he is accused of the offence of cheating the public at large in terms of section 9(a)(ix) of NAO, 1999 and that interestingly in that Reference, even the land owners from whom respondent No.4 ostensibly bought the land, so as to establish a Housing Society (which never came to pass) are also co-accused and stand nominated in the Reference. He has also informed the Court that the entire land involved in the said Reference is situated in the area of Tehsil Sadiqabad District Rahimyarkhan and has no nexus with the present petitioners before this Court, whose land of which they have been deprived is situated in Tehsil Chishtian District Bahawalnagar . He is, therefore, of the view that perhaps the order passed by the learned Justice of Peace is not worthy of being sustained. That, rather , these are cases where jurisdiction ought to have been assumed but has not been assumed.
6. I have heard the learned counsel for the petitioner and have perused the impugned orders. Learned A.A.G. accepts notice on behalf of the State and this matter is being decided as a regular case.
7. It has been noted by this Court that section 489-F , P.P.C. is not a scheduled offence of the NAB Ordinance and therefore, the bar contained in section 18(d) of the NAB Ordinance may not be applicable in the present cases.
Since the offence under section 489-F , P.P.C. is neither a scheduled offence, nor does the transaction that it pertains to have any connection with the Reference pending before the Accountability Court, Multan, the order passed by the learned Justice of Peace comes across as susceptible to supervisory interference.
8. Furthermore, it may also be highlighted that section 16-A of the NAO, 1999 speaks about the transfer of cases and refers to a case involving any offence under the NAB Ordinance. Even otherwise, section 16-A envisages a case in which cognizance of an offence has been taken by a Court and which is not the case in the present petition. In the present petitions, the matter is at a nascent stage and therefore, section 16-A has no applicability in respect of the petitions in hand. Learned law officer submits that section 16-A, in any case empowers the Chairman NAB to call for any case pending in any Court, so as for the said case to be tried by the Accountability Court, if the circumstances so warrant. Learned law officer further submits that even if at some later stage the present matter gains any relevance to the Reference pending before the Accountability Court at Multan, then the Chairman NAB can very easily ask for the present cases to be transferred to the Accountability Court.
18(d). "The responsibility for inquiry into and investigation of an offence alleged to have been committed under this Ordinance shall rest on the NAB to the exclusion of any other agency or authority , unless any such agency or authority is required to do so by the Chairman NAB or by an of ficer of the NAB duly authorized by him."
The above shows that the offence of 489-F is not an offence under NAO, 1999, since it is not mentioned either in section 9 or the Schedule, hence, section 18(d) has no application and police will be under an obligation to lodge the FIR.
16A. "(a) Notwithstanding anything contained in any other law for the time being in force, the Chairman NAB may apply to any Court of law or tribunal that any case involving any offence under this Ordinance pending before such Court or tribunal shall be transferred to a Court established under this Ordinance, then such -other Court or Tribunal shall transfer the said case to any Court established under this Ordinance and it shall be deemed to be a reference under section 18 of the Ordin ance, and it shall not be necessary for the Court to recall any witness or again to record any evidence that may have been recorded."
9. Section 16A only comes into operation when the trial of case which involves an offence under NAO is pending before a trial Court. However , this has no application at the stage prior to the initiation of trial i.e. at the stage of registration of FIR.
10. Besides the above, it has also been noted by this Court that the Code of Criminal :Procedure is only not applicable to the proceedings under the NAB Ordinance if there is an inconsistency in the NAB Ordinance on the one hand and the Code of Criminal Procedure on the other . Learned law officer has rightly pointed out that this Court should refrain from committing the cardinal sin of reading an inconsistency between the two when in actual fact there is none. Even otherwise, the transaotions which are the subject matter of the petitions before this Court have no connection or nexus with the Reference pending before the Accountability Court. The Reference at Multan is about cheating the public at large with respect to sale of plots in the area of Tehsil Sadiqabad while the present petitions relate to the issuance and dishonoring of cheques issued for buying land in the area of Tehsil Chishtian.
11. Be that as it may, a judgment of the Hon'ble Supreme Court of Pakistan reported as Muhammad Nadeem Anwar v. Securities and Exchange Commission of Pakistan through Director NBFCs Deptt. Islamabad (2014 SCMR 1376 ) puts paid to the order passed by the learned Justice of Peace because the Hon'ble Supreme Court has categorically held that two offences under different enactments can result out of a single transaction . In another case reported as Mian Haroon Riaz Lucky and another v. The State and others (2021 SCMR 56), the Hon'ble Supreme Court when faced with a similar question has clearly held that an FIR under section 462-C, P.P.C. can be lodged and investigation despite the presence of Gas (Theft Control and Recovery) Act (XI of 2016).
12. Looked at from another angle, the same result can be achieved. In the case of Jitendra Panchal v. The Intelligence Officer (Bombay High Court) (2005 Cri.LJ 974), it has been held that "If the same set of facts constitute offences under more than one provision of law, then it will not attract the principle of double jeopardy , and separate prosecution and punishment for such distinct offences would not be barred. If there are two distinct and separate offences with different ingredients under two different enactments are disclosed and established even from same set of facts, then a double punishment is not barred, and the principle of double jeopardy is not attracted.
In the case of Muhammad Nadeem Anwar v.Securities and Exchange Commission of Pakistan through Director NBFCs Deptt. Islamabad (2014 SCMR 1376 ), it has been held that "Bare reading of afore-quoted provision of law is clearly suggestive of the fact that both are under different enactments of law having different procedure and forum for initiating proceedings thereunder although both the sets of offences have been committed by the accused in one go that is to say that the accused-petitioner acted in such a manner which constituted offences punishable under two separate and distinct laws i.e. one under the NAB Ordinance and the other under the Companies Ordinance. Both are different and distin ct pieces of legislation, therefore, acts and omissions of the petitioner committed by him cannot be said to be same of fences."
In the case of State of Bombay v. S.L. Apte and another (AIR 1961 SC 578), it has been held that "the question that fell for consideration was that in view of earlier conviction and sentence under section 409, IPC a subsequent prosecution for an offence under section 105 of Insurance Act, 1935, was bared by section 26 of the General Clauses Act and Article 20(2) of the Constitution. This Court observed: "To operate as a bar the second prosecut ion and the consequential punishment thereunder , must be for 'the same offence'. The crucial requirement therefore, for attracting the Article is that the offences are the same i.e. they should be identical. If, however , the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar , the benefit of the ban cannot be invoked . It is, therefore, necessary to analyse and compare not the allegations in the two complains but the ingredients of the two offences and see whether their identity is made out."
In Jeffers v . United States (432 U.S. 137 1977 ), it has been provided as follows: "Where the same evidence suffices to prove both crimes they are the same for double jeopardy purposes and the clause forbids successive trials and cumu lative punishment for the two crimes. The offences must be joined in one indictment and tried together unless the defendant requests that they be tried separately ."
In the case of State of Bihar v. Murad All Khan, Farukh Salauddin (1988 SCR Supl. (3) 455), it has been observed as under:- "In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. In Leo Roy Frey v. The Superintendent, District Jail, Amritsar , [1958] SCR 822 the question arose whether a crime and the of fence of conspiracy to commit it are dif ferent of fences. The Court said: "The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate of fences."
13. It is clear from the above that the offence under section 489-F , P.P.C. is distinct and separate from the offence of cheating the public at large (section 9(a)(ix) of NAO, 1999, which is under trial at Multan. Two different sets of evidence are required to prove these distinct offences. And both offences are provided under different statutes with different attendant procedural nuances.
14. In this view of the matter , since the applications before the learned Justice of Peace did reveal the commission of a cognizable offence, therefore, in view of the law laid down by the Hon'ble Supreme Court of Pakistan reported as Abdul Rehman Malik's case (supra) 2020 SCMR 2037 ; Muhammad Bashir v. Station House Officer , Okara Cantt. and others (PLD 2007 SC 539) and Malik Sohail Aslam's case (2017 YLR 1548 ), it was incumbent on the learned Justice of Peace to have ordered for the registration of criminal cases.
15. This Court was seriously minded to issue notice to respondent No.4 but then the Research Cell at this Beach of this Court brought in the cases reported as Saeed Ahmad and others v. Naseer Ahmad and others (PLD 2000 Lahore 208), Muhammad Aslam v. Additional Sessions Judge and others (2004 PCr.LJ 1214 ), Sana Ullah v. SHO Police Station Civil Lines, Gujart and 3 others (PLD 2003 Lahore 228) and Mst. Gul Reza and others v. The State and others (2002 PCr.LJ 9) in which it has been consistently noted that section 154, Cr.P.C. did not envisage any hearing for an accused before registration of a criminal case. Neither before the Station House Officer, nor before the Justice of Peace and not even before this Court even if the accused is present. At the time of the First Information Report accused persons named in the complaint have no right of hearing.
16. Therefore, this Court decided against calling upon respondent No.4 to appear and resist the lodging of crime reports. In any case, the following words in section 154, Cr.P.C. "every information relating to commission of a cognizable offence" pertain only to the information so provided and do not pertain to actual commission of a cognizable offence. The information so supplied, as long as it is in respect of a cognizable offence, irrespective of its veracity , has to be accepted as gospe l by the Station House Officer, in terms of his statutory obligation under section 154, Cr .P.C. No more!
17. For what has been discussed above, both these petitions are allowed, both the orders of learned Justice of Peace dated 09.04.2021 G are set aside and the petitioners are directed, if so advised, to approach the SHO P.S. City A-Division, Chishtian who shall receive the applications from the petitioners and shall thereafter proceed in accordance with section 154, Cr .P.C.