TARIQ MEHMOOD JAHANGIRI, J. Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has impugned order dated 20.04.2021, whereby, petition filed by the petitioner under section 22-A/B, Cr.P.C. seeking registration of FIR against respondents Nos.3 and 4 was dismissed by learned Additional Sessions Judge-X, West-Islamabad.
2. Succinctly stated facts of the matter are that the petitioner being entity in the name and style of Multitek Marketing and Services had entered into an agreement with the proposed accused/respondents Nos.3 and 4 (hereinafter referred to as "respondents") by virtue of which seven (07) undated security cheques amounting to Rs.41,000,000/- in terms of trust and for performance of the acts as Mentioned in the agreement were given to respondents; civil litigation for cancellation of said cheques is sub-judice in the learned Civil Court, Islamabad. Cheques were presented by respondents which were dishonoured by the bank; respondent No.3 got registered FIR No.548/2020, dated 19.11.2020, offence under section 489-F, P.P.C. against the petitioner and his father who obtained bail from the Court of law.
3. Cheques handed over to respondents were undated but respondents by committing fraud, forgery and tampering, written/ mentioned the dates on the cheques before presenting in the bank.
4. The petitioner filed petition for registration of FIR against respondents which was not registered, hence petition under section 22-A/B, Cr.P.C. was filed which was dismissed vide impugned order dated 20.04.2021, hence the instant writ petition.
5. Learned counsel for thee petitioner, inter alia, contends that proposed FIR clearly constitutes commission of cognizable offence, under section 154, Cr.P.C. the police is bound to register FIR against contesting respondents; learned Justice of Peace has not appreciated the relevant provisions of law as well as dictums laid down by superior courts of the country and passed the impugned order which is erroneous, not tenable under the law, hence liable to be set aside and direction be issued to the police for registration of FIR against the respondents on the complaint of petitioner.
6. Conversely, learned counsel for respondents' states that issuance of cheques has been admitted; no cognizable offence is made out; the petitioner has filed instant writ petition by misrepresentation and, by concealment of facts, hence the same is liable to be dismissed.
7. Arguments advanced by learned counsel for both the parties have been heard and record has been perused with their able assistance.
8. Allegation levelled by the petitioner against contesting respondents is that the petitioner executed a business agreement, issued seven cheques amounting to Rs.41,000,000/- as guarantee without dates, it was mentioned in the conditions of contract that respondents will not present the cheques without giving notice of 90 days to the petitioner but respondents by committing cheating, fraud and forgery have mentioned / written dates on the cheques and presented in the bank which have been dishonoured; act of respondents constitutes a cognizable offence, hence FIR is liable to be registered.
9. Issuance of cheques along with signatures by the petitioner and his father is admitted which have been dishonoured by the bank upon presentation; respondent No.3 got registered a case vide FIR No.548 dated 19.12.2020, under section 489-F, P.P.C., at Police Station Kohsar, Islamabad against the petitioner and his father.
10. After registration of case against the petitioner, as a counterblast the petitioner filed an application to SHO, Police Station Kohsar, Islamabad for registration of criminal case against contesting respondents on the basis of aforementioned allegations.
11. Civil litigation between the parties is also pending; learned Justice of Peace dismissed the petition vide impugned order on the ground that issuance of cheques by the petitioner and his father is admitted, which got dishonoured upon presentation from the concerned bank; civil suit for cancellation of cheques filed by the petitioner is also pending adjudication.
12. Learned Justice of Peace called a report from SP (Complaint) and after hearing the parties dismissed the petition on 20.04.2021. The petitioner filed instant writ petition on 08.06.2021, against impugned order dated 20.04.2021 passed by learned Justice of Peace.
13. After dismissal of 1st petition tiled under section 22-A/B, Cr.P.C. on 20.04.2021, the petitioner (accused of FIR No.548/2020, offence under section 489-F, P.P.C.) filed second petition under section 22-A/B, Cr.P.C. for recording of his defense version on 20.05.2021, before the learned Sessions Judge West/Justice of Peace, Islamabad along with affidavit at the bottom of petition, has given a certificate that: "Certified that this is the 1st petition ever moved by the petitioner before this Hon'ble Court on the instant subject matter.
"That] no other petition of the petitioner is pending before any other forum on the instant subject as per information received from the petitioner subject to confirmation from the record. "
On the said petition, learned Justice of Peace passed an order dated 21.06.2021, whereby it has mentioned that the petitioner Khurram Imtiaz is in police custody in subject FIR, while no one was present from his side to proceed with the arguments. Since none bothered to put appearance from the side of petitioner, the matter was put off to 12:30 p.m for arguments but learned counsel states that no any order was passed at 12:30 p.m which reflects that petition filed by the petitioner for recording of defense version was dismissed on 21.06.2021.
14. Third petition for registration of FIR on the basis of same allegation was filed by the petitioner on 0I.O6.2021, before the learned Justice of Peace along with affidavit at the bottom of the petition incorporated a certificate that: "i. Certified that this is the 1st petition ever moved by the petitioner before this Hon'ble Court on the instant subject matter. "ii. That no other petition of the petitioner is pending before any other forum on the instant subject as per information received from the petitioner subject to confirmation from the record."
Third petition was dismissed as withdrawn by the Court of learned Additional District and Sessions Judge-VII, West Islamabad on 16.06.2021.
15. Instant writ petition was filed on 08.06.2021, against impugned order dated 20.04.2021 but before filing the instant writ petition, the petitioner filed second petition under section 22-A/B. Cr.P.C. for recording of defense version on 20.05.2021, which was pending adjudication before the learned Justice of Peace at the time of filing of instant writ petition.
16. Third petition under section 22-A/C, Cr.P.C. for registration of FIR against respondents was filed on 0I.O6.2021, which was also pending adjudication before the learned Additional District and Sessions Judge-VII, West Islamabad at the time of tiling of instant writ petition.
17. The petitioner has not mentioned rather concealed the pendency of second petition filed on 20.05.2021 and third petition filed under section 22-A/B, Cr.P.C. on 0I.O6.2021 before learned Justice of Peace at the time of filing of instant writ petition.
18. In second petition filed under section 22-A/B, Cr.P.C. for recording of defense version, the petitioner concealed the fact of dismissal of his first petition filed under section 22-A/B, Cr.P.C. on 20.04.2021.
19. In third petition filed under section 22-A/B, Cr.P.C. for registration of FIR against respondents filed on 0I.O6.2021, the petitioner concealed the fact of dismissal of his first petition on 20.04.2021, and pendency of second petition filed on 20.05.2021.
20. Petitioner gave false certificates and attached false affidavits with instant writ petition as well as with 2nd and 3rd petitions filed under section 22-A/B, Cr.P.C. before learned Sessions Judge / Justice of Peace, Islamabad.
21. All the above-mentioned facts clearly establish that the petitioner has committed cheating, fraud, misrepresentation and concealment of facts with the Courts of law with mala fide intention and by ulterior motives in order to get favourable decisions.
22. When the ulterior motives and goals of the petitioner were not achieved from the District Courts Islamabad by filing three petitions under section 22-A/B, Cr.P.C. by misrepresentation and concealment of facts and giving false certificates and submitting false affidavits in the Courts, he filed an application under section 22-A/B, Cr.P.C. in the Court of Sessions Judge Lahore on 14.03.2022, mentioning him resident of Lahore and had also given a certificate on the petition that: "It is certified that it is the 1st petition on the subject before this Honorable Court."
Orders for registration of the case were passed by the Court of Mr. Muhammad Azam, Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore on 04.04.2022, and consequently, a case vide FIR No.732 dated 12.04.2022, offence under sections 406, 506, P.P.C. at Police Station Gulberg, Lahore was registered against respondents.
23. The petitioner filed another application in the Court of Session Judge, Lahore under section 22- A/B, Cr.P.C. by concealment of facts of dismissal of earlier petitions under section 22-A/B, Cr.P.C. in Islamabad and pendency of petition under section 22-A/B, Cr.P.C. in the Court of Sessions Judge, Lahore. Second petition under section 22-A/B, Cr.P.C. filed in Lahore by the petitioner was allowed vide order dated 22.03.2022, passed by Mr. Shahbaz Ahmad Khagga, Additional Sessions Judge/Ex- Officio Justice of Peace, Lahore. Consequently, a case vide FIR No.504, dated 30.03.2022, offences under section 406, P.P.C. and under sections 3 and 4 of The Punjab Prohibition of Private Money Lending Act, 2007 was registered at Police Station Mazang, Lahore.
24. During the course of arguments learned counsel for the petitioner did not inform about the fact of tiling petitions and registration of criminal cases in Lahore, also did not produce the copies of said documents; learned counsel for respondents has filed report and parawise comments, wherein said facts of filing and dismissal of second and third petition under section 22-A/B, Cr.P.C. in Islamabad as well as filing of petition in Lahore and registration of aforementioned FIRs have brought on record.
25. It is trite that for discretionary and equitable relief, it is pre-condition that the parties should approach the Courts with clean hands, in F order to get the relief. Reference in this regard may be made to the following case laws:-
(i) It has been held by the Hon'ble Supreme Court of Pakistan in a case titled as "Shafqatullah and others v. District and Sessions Judge Nowshera, N. W. F. P and 4 others" (2001 SCMR 274), that:- "It would also appear from the record that the petitioners did not approach the High Court with clean hands entitling them to the discretionary, equitable relief under the Constitutional jurisdiction".
(ii) It has been held in a case titled as "Manzoor Hussain and 3 others v. Muhammad Siddique (2000 CLC 623 [Lahore])", that:- "The grant or refusal of declaration is essentially discretionary and in this case, to my mind, the plaintiff had forfeited his right to an equitable relief by putting up a false case".
26. It is well settled that certiorari is only available to quash a decision for an error of law. It will also be issued for correcting errors of jurisdiction when an inferior Court or a tribunal acts without jurisdiction or in excess of its jurisdiction, or fails to exercise its jurisdiction or where the Court or a tribunal acts illegally in exercise of its undoubted jurisdiction and it decides a matter in violation of the principle of natural justice. The High Court while issuing a writ of certiorari acts in exercise of supervisory and not appellate jurisdiction. The High Court in exercise of its writ jurisdiction will not review the findings of facts reached by the inferior Court or a tribunal. Reliance may be made to the following case laws:
(i) "Amjad Khan v. Muhammad lrshad (Deceased) through LRs" (2020 SCMR 2155)
(ii) "President All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others" (2020 SCMR 260)
(iii) "Chief Executive MEPCO and others v. Muhammad Fazil and others" (2019 SCMR 919)
(iv) "Chairman, NAB v. Muhammad Usman and others" (PLD 2018 SC 28)
(v) "Shajar Islam v. Muhammad Siddique and 2 others" (PLD 2007 SC 45).
27. In view of above discussion, instant writ petition is dismissed with special cost of Rs.500,000/- to be paid by the petitioner to contesting respondents within a period of 10 days of pronouncement the judgment.
28. Instant matter is referred to the learned Sessions Judge, West-Islamabad for initiating criminal proceedings against the petitioner for executing false affidavits, giving false certificates, committing misrepresentation, cheating, fraud and concealment of facts before the Courts of law under the relevant provisions and to submit report of the fate of the proceedings within a period of six (06) months.
29. Before parting it is pertinent to emphasize that it is always painful for a Court to impose heavy costs on persons seeking to invoke the extra ordinary jurisdiction of this Court. However, if such reprehensible and contemptuous conduct is ignored as, in the present case, the Court, would be failing in its duty to protect the interests of the bona fide litigants and its own process. It is expected that the present petitioner and other litigants will exercise utmost care in future and respect the decorum of Courts and rights of the bona fide litigants, who are the actual stakeholders of the justice system.