SYED ARSHAD HUSSAIN SHAH, C.J. The instant Criminal Petition for Leave to Appeal arises out of the impugned Order dated 09.06.2020 passed by the learned Gilgit-Baltistan Chief Court in Writ Petition No. 109/2020 whereby, writ petition filed by the present petitioner for superdari of original disputed cheque was dismissed and Orders passed by the learned lower Courts were maintained.
2. Facts in brief are that an FIR was registered against the present petitioner for allegedly presenting a fake cheque amounting to Rs. 1483590/- issued by AGPR Gilgit on account of supply of certain lab reagents and surgical items by present petitioner to District Health Officer Ghizer (hereinafter will referred as Lab items). A fake cheque was alleged to have been presented by present petitioner to National Bank of Pakistan Main Branch Gilgit in the same amount for encashment with ulterior motives to draw double amount of the same single cheque. After an inquiry, upon request of Manager, National Bank of Pakistan Main Branch Gilgit FIR No. 16/2020 was lodged against the present petitioner under sections 420/511, P.P.C. with Police Station, City Gilgit and both the cheques were impounded as case properties of the FIR. The present petitioner filed an application before the learned Judicial Magistrate 1st Class No. III Gilgit by way of Criminal Misc. No 04/2020 for superdari of original cheque which was dismissed. The order of dismissal of application for superdari was called in question by present petitioner before the learned Additional Sessions Judge District Gilgit by means of Criminal Revision No. 05/2020 which was also dismissed vide order dated 09.05.2020 whereby order of the learned judicial Magistrate was maintained. Being aggrieved, the present petitioner impugned the said order passed by the learned Additional Sessions Judge Gilgit before the learned Chief Court by way of Writ Petition No. 109/2020. The writ petition filed by present petitioner before the learned Chief Court also met the same fate. Now the present petitioner has challenged the order passed by the learned Chief Court in the writ petition before this Court through the instant Criminal Petition for Leave to Appeal.
3. Learned counsel for the present petitioner argued that the learned Courts below erred in appreciating the fact that the present petitioner did not present the fake cheque to the concerned Bank because when he went to bank to know transfer of amount in his account, he came to know that Branch Manager had initiated a criminal case with police station City for, alleged presentation of fake cheque and that when he contacted the branch manager to know as to who had presented the fake cheque, branch manager could not satisfy the present petitioner. Learned counsel next argued that it was unimaginable as to why present petitioner could try to destroy his original cheque by presenting a fake one while, he maintained that this fact was altogether ignored by the learned Courts below therefore, all orders/judgments passed by them were not sustainable in the eyes of law and were liable to be set aside. It was next contended by learned counsel for present petitioner the learned Courts below also failed to apply their judicious mind to the facts of cases before them that there was no dispute with regard to issuance of original cheque, hence original cheque could have been handed over to petitioner for encashment against the admitted liabilities regarding supply of lab items to avoid monetary loss, therefore all the judgments/orders passed by the learned Courts below being against facts and misconception of law were not sustainable and were liable to be set aside. On the other hand, learned Prosecutor General opposed the contentions of learned counsel for present petitioner and argued that the impugned judgment passed by the learned Gilgit-Baltistan Chief Court was in accordance with the law and facts, hence prayed for upholding the same.
4. Arguments advanced by counsel of both parties have been heard. Record as well as the impugned judgment has also been gone through minutely.
5. Vide our short order 06.04.2021 we have already directed present respondents to release payment to petitioner against the lab items already supplied by him. Now we would like to record reasons for the said short order. It is an admitted fact that the present petitioner had supplied lab items to DHO Office Ghizer. Upon receipt of lab material, bills thereof were prepared, submitted to AGPR and the disputed cheque was passed and issued in favour of present petitioner. The original cheque along with the alleged manipulated cheque were impounded by police authorities as case property. The question before the learned Trial Court was that as to whether the disputed original cheque could have been handed over to the present petitioner on superdari for encashment against an admitted civil liability accrued in his favour or not. The question is yes for the reasons that being an admitted civil liability, its due payment could not be denied, as such the disputed cheque could have been issued to the present petitioner for encashment by retaining a photocopy thereof with police record while original cheque could have been requisitioned from the retainer thereof i.e. AGPR or the concerned bank whosoever, for the purpose of investigation by police authorities or during trial of the case before the learned Trial Court. These two offices could have been bound under Court orders to produce the original cheque either upon requisition by police authorities or by the Trial Court as and when requisitioned by them for the purpose of investigation or trial of the case before the concerned Trial Court. It is further observed that this is an admitted civil liability which cannot be denied just on the basis of registration of criminal case against the present petitioner. In addition to this, there was another option with the Trial Court and the learned Chief Court that in case if they made up their minds to refuse superdari of the disputed cheque, at the same time, they could pass orders for issuance of a fresh cheque to present petitioner so as to clear the already admitted civil liability from/against DHO Ghizer. However, the learned Courts below did not appreciate the legal and factual position of case in hand and tended to refuse to hand over the disputed original cheque to present petitioner which tantamount to depriving of present petitioner from a handsome amount due to him by present respondents against the supply of lab items. It is settled principle of law that civil and criminal liabilities are two different components and do not have bearing on the outcome of each other, as such due to commission of D criminal act by a person, he cannot be denied civil right provided to him under the law.
6. In view of what has been discussed above, the instant civil petition for leave to appeal is converted into an appeal and the same is allowed. The impugned judgment dated 09.06.2020 passed by the learned Gilgit-Baltistan Chief Court in Writ Petition No. 109/2020 is set aside. These were the reasons of our short order dated 06.04.2021, which is reproduced herein below: "Case heard and record perused. For the reasons to be recorded later, the instant Criminal P.L.A.
No. 10/2020 is converted into an appeal and the same is allowed. The impugned Order dated 09.06.2020 passed by the learned Gilgit-Baltistan Chief Court in W.P. No. 109/2020 is set aside.
2. In the meanwhile, the respondent is directed to release payment of the petitioner."