1. ' Brief facts leading to this petition are that on 14-12-1986 respondents filed a complaint in the Court of Assistant Commissioner Pat Feeder under section 420/417/406, P.P.C. Alleging that petitioner in order to satify his liability of Rs,30,000 due to them from him, gave cheque, dated 30th October, 1986 drawn on Allied Bank Jacobabad. According to complainants cheque was dishonoured on presentation with remarks 'not arranged for'. It is alleged that petitioner issued the cheque with full knowledge that amount in the bank, could not be arranged and thus has cheated them. Learned Assistant Commissioner referred the matter to Naib-Tahsildar for investigation and report. Record reflects that Naib-Tehsildar Dera Murad Jamali during inquiry recorded statements of both the complainants and two witnesses namely (i) Sri Chand and (ii) Anm Dass, produced in support of their assertions. It may be seen that complainants/respondents merely reaffirmed averments of complaint and mentioned names of aforementioned two witnesses for proving accusation against petitioner. Whereas both these witnesses during inquiry deposed that Rs,30,000 was entrusted by complainants to petitioner and cheque which has been dishonoured was issued in lieu thereof.
2. ' On the basis of preliminary inquiry, Naib-Tehsildar arrested the petitioner from Jacobabad on 16- 12-1986. Bail application was moved before S.D.M. Pat Feeder on 20th December, 1986 who made following endorsement:- "R/J. Put up for hearing on 22nd as I will not be in the Court on 21st.
3. (Sd.) 20.12 ' R.J. Call for case papers today.
4. (Sd.) 20.12"
5. ' On the next day viz. 21-12-1986 another application was submitted by petitioner's counsel seeking release for one week, to resolve dispute between the parties, out of Court. Interim bail was granted in the following terms:- "Interim bail for the period of one week is granted. He shall furnish the bail bond in the sum of Rs,50,000.
6. (Sd.)"
7. ' Before expiry of 7 days for which interim bail was granted, petitioner approached learned Sessions Judge Nasirabad at Jhatpat for anticipatory bail. Initially said Court granted interim bail. Later, by Leans of order, dated 19th February, 1987 petition in that behalf was rejected on the ground of being not maintainable. Petitioner has now filed Criminal Misc. No, 4/1987 seeking quashment of the proceedings instituted against him on the complaint of the private respondents, whereas Revision No, 14/87 aims at anticipatory bail, challenging order of rejection passed by learned Sessions Judge, Nasirabad.
8. ' Mr. Muhammad Aslam Chishti, learned counsel for petitioner urged that (i) averments of complaint, on the face of it do not constitute any criminal offence; (ii) factum of dishonour of cheque at best would be civil liability for which criminal Courts have absolutely no jurisdiction; (iii)
9. Assuming for the sake of argument that any criminal case is made out, in that event cheque is drawn on Allied Bank Jacobabad, no transaction indicated to have taken place at Dera Murad Jamali, trial Court, therefore, has no territorial jurisdiction to entertain the proceedings; (iv) initiation of proceedings by complainants at Dera Murad Jamali is mala fide, besides Assistant Commissioner is interested because he forced petitioner to settle the matter with complainants/respondents.
10. ' Mr. Azizullah Memon learned counsel for respondent on the other hand emphatically argued that
(i) issuance of post, dated cheque by petitioner with full knowledge that he did not have adequate resources to arrange said amount in the bank, constitutes cheating, therefore, according to him action initiated against him as lawful. (ii) Respondents are permanent residents of Dera Murad Jamali, as such there is no illegality in the initiation of proceedings there. (iii) The matter is still at initial stage, petitioner has alternate remedy by approaching trial Court within the purview of section 249-A, Cr.P.C., therefore, petition for quashment directly without availing intervening remedies is not maintainable.
11. ' Learned Advocate-General also challenged the maintainability of petition on similar grounds contending that petitioner ought to have availed alternate prescribed remedies before approaching this Court.
12. ' I have perused the record and considered arguments advanced by learned counsel for parties.
13. Since question of maintainability of petition as well as jurisdiction of criminal Court to entertain the matter has been raised, therefore, it would be proper to deal with this aspect first.
14. It may be seen that section 249-A, Cr.P.C. Was introduced by means of Code of Criminal Procedure (Amendment) Ordinance, 1977 (dated 30-10-1977) whereby at any stage of proceedings when accusation appears to be groundless or there does not appear any probability of conviction on the material adduced by prosecution accused can be acquitted by the trial Court. Nevertheless, these provisions do not in any way curtail or abridge the powers for quashment contained in section 561- A, Cr.P.C. Inherent powers of High Court, as a Court of record or as an authority for exercising powers of general superintendence, are obviously unaffected. Whenever circumstance show abuse of process of Court on the face of record, glaring illegality, arbitrary or improper exercise of authority or illegal assumption of jurisdiction, power under section 561-A, Cr.P.C. Can be legitimately invoked. Numerous judgments have been cited which suggest circumstance wherein quashment petition can be entertained directly. Some of the cases are mentioned below:- ' Khushi Muhammad v. Niaz Ali and others 1984 P Cr. L J 2223; Hussain Bakhsh and others v. Noor Muhammad and others 1983 P Cr. L J 1585; Abdul Karim v. Umar Hayat and others 1986 PCr.LJ 97; Ghulam Rasool v. The State 1986 P Cr. L J 347; Maqbool Ahmed v. The State 1986 P Cr. L J 1560; Muhammad Tufail and others v. The State and others 1986 P Cr. L J 2749; Naseer Ahsan and another v. Syed Vaqar Raza and another 1987 P Cr. L J 803; Superintendent of Police, Federal Investigation Agency, Lahore and another v. Akhtar Hussain Khan Bhutta PLD 1978 SC 193 and Sanobar Khan v.
15. The State and others PLD 1967 Pesh.
16. 67.
17. ' Mr. Azizullah Memon learned counsel for the respondents however in order to challenge maintainability has relied on following cases:- ' Nasir Ali v. Mehr Khan PLD 1981 SC 607; Dr. Syeda Arza Tasneem Zaidi and another v. Syed Nazar Hussain Bokhari and others 1986 PCr.LJ 2239 relevant 2242; Abdul Qadir v. The State 1986 PCr.LJ 1696 and Piar Muhammad v. Abdul Khaliq and 5 others 1986 PCr.LJ 1825.
18. The aforequoted decisions thus enunciate that normally Courts of lowest jurisdiction should be approached first and after exhausting normal remedies jurisdiction of High Court may be invoked.
19. But at the same time it has been unambiguously propounded that provisions of section 561-A, Cr.P.C. Are much wider in scope than the provisions of section 249-A, Cr.P.C. As such does not in any way reduce or affect the powers independently possessed by the Courts under section 561-A, Cr.P.C. Therefore, in cases where abuse of process of Court is patent on the face of record, or when approaching the trial Court might be an exercise in futility or such other exceptional circumstance reflecting gross injustice, arbitrariness, or palpably dishonest use of magisterial powers is made out, in that event proceedings can legitimately be entertained even directly. In fact no hard and fast rule can be laid in this behalf. Actually application of broad principles will depend on the facts of each individual case and nature of action initiated by trial Court in a particular matter. Therefore, in the light of above discussion it has to be seen whether in the instant case circumstances exist for justifying exercise of jurisdiction by this Court directly or not. Thus, I would proceed to examine the merits of the case.
20. ' The averments of complainant clearly indicate that cheque was issued by petitioner in lieu of some amount which was statedly payable by him to complainants on account of certain business transaction. The position about exact nature of claim has been further clarified by complainants in their reply accompanied by an affidavit filed in this Court on 25th of March, 1987. The relevant extract is reproduced in verbatim, for proper appreciation:- "The petitioner approached the answering respondents at Dera Murad Jamali on 28-10-1986 and told them that he is in need of Rs,30,000 for two days only, which request was acceded to and the said amount was given by the answering respondents to the petitioner at Dera Murad Jamali on 28-10-1986. Thereafter, the petitioner issued a post-dated cheque for 30-10-1986, in favour of the answering respondents, which was to be drawn from the Allied Bank of Jacobabad. The cheque was presented on 30-10-1986 at Allied Bank of Pakistan Jacobabad, but it was dishonoured. It is submitted that the money was taken by the petitioner from the answering respondents with the intention to cheat them."
21. Bare perusal will thus indicate that amount of Rs,30,000 was given by complainants to petitioner as he needed it with understanding to return within two days. Whereas subsequently instead of paying the amount a cheque drawn on Allied Bank of Jacobabad was issued by petitioner which on presentment was dishonoured. Obviously there is not a slightest element of dishonest or fraudulent inducement even alleged while giving amount of Rs,30,000 to the petitioner. According to complainants' own showing amount was paid to petitioner for catering his need. The very stand of complainants indicate that amount was paid to petitioner simply and purely by way of civil transaction in routine business. However, situation arose when cheque, dated 30th October, 1986 issued by petitioner in lieu of aforesaid liability was dishonoured when presented. Thus, real dispute, therefore, appears to have cropped up from this stage. Perusal of section 415, P.P.C. Would show that, stated allegations in the complaint as well as reply, dated 25-3-1987 filed by complainants/respondents do not constitute ingredients of cheating. Element of inducement or delivery of any dominion over property as regards real cause of grievance is conspicuously missing from complete set of allegations brought forth by complainants against the petitioner.
22. Surprisingly two witnesses examined during enquiry have attempted to show entrustment which is not the case of complainants themselves. Besides neither complainants nor witnesses at all mention about the place where cheque was delivered by petitioner to the complainants. Obviously main cause of action for instituting complaint revolves around issuance of cheque, therefore, unless it is at least specifically alleged by complainants or any of their witnesses that same was factually delivered at Dera Murad Jamali, apparently trial Court cannot assume jurisdiction merely because complainants reside in that area. Even in the reply dated 25-3-1987 filed in this Court, none of the events leading to filing of complaint is alleged to have taken place at Dera Murad Jamali. Whereas evidently cheque was drawn on Allied Bank Jacobabad. Thus, taking into consideration the available data coupled with complete silence about the place of delivery of cheque, trial Court was apparently not justified in entertaining the complainant. It is important to note that even otherwise mere issuance of cheque does not by itself constitute a criminal act. It is only when it has been done on dishonest representation or fraudulent inducement that cause for criminal action is made out. Similarly factum of dishonouring of cheque must appear to be consequence of cheating within purview of section 415, P.P.C. Otherwise transaction would be simply breach of civil liability. From circumstances discussed above it is quite clear that neither complainants nor any of the witnesses examined during preliminary inquiry, including reply filed by respondents at revisional stage show that cheque was delivered at Dera Murad Jamali. However, the place where consequences have ensued on the presentment of said cheque is duly notified to be Jacobbad city. Therefore, from available facts I am persuaded to believe that learned Assistant Commissioner Pat Feeder, acted illegally in assuming jurisdiction in the matter, at least without satisfying itself about basic and essential requirements of his territorial authority. Besides very transaction on the stated allegations appears to be of civil nature. Learned counsel for complainants however, emphasized that in the light of observations in PLD 1981 SC 607 all these factors cannot be considered at this stage. Suffice it to say that circumstances in the instant case are quite distinguishable. Because here even complaint besides being sketchy, merely suggests normal business transaction of civil nature. Secondly total evidence intended to be produced by the complainants in support of their assertions has been brought on record during preliminary inquiry. Besides apparently want of territorial jurisdiction is reflected from record. Therefore, taking into consideration all the factors discussed above I am inclined to hold that initiation of proceedings against petitioner on the criminal side appears to be clearly an abuse of the process of Court. Conduct of trial Court in dealing with bail application is not in consonance with settled principles of law. In the circumstances it would be exercise in futility to insist on technicalities and put the petitioner, at the mercy of trial Court for unnecessary rehearsal which ultimately will prove to be purposeless. Therefore, I think it a fit case for exercise of jurisdiction for quashment of proceedings to prevent further abuse of the process of Court.
23. For the foregoing reasons the proceedings initiated against the petitioner on the complaint of the private respondents in the Court of Assistant Commissioner, Pat Feeder are ordered to be quashed.
24. Private respondents (complainants) shall, however, be at liberty to seek their remedy before civil Court of competent jurisdiction if so advised. In view of quashment of the proceedings petition No, 14/1987 has become infructuous.
25. ' Both the petitions are thus disposed of in the above terms.