21/05/2022
489- F
**** : 2017 MLD 535 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ASGHAR ALI
Side Opponent : State
S. 489-F---Criminal Procedure Code (V of 1898), S.561-A---Qanun-e-Shahadat (10 of 1984), Art.133---Dishonestly issuing a cheque---Forfeiture of cross-examination---Petition under S.561-A, Cr.P.C. against the order of forefeiture---After submission of report under S.173, Cr.P.C., case could not proceed for one reason or the other---Various adjournments were allowed to the discredit of the complainant---Trial Magistrate succeeded in recording statements of prosecution witnesses, but cross-examination was deferred on the request of the defence---On various dates the witnesses were in attendance, but due to non-availability of the defence counsel, case was adjourned with last opportunity to the petitioner/accused to arrange cross-examination---On various dates of adjournments, witnesses were again in attendance but accused failed to arrange for cross-examination---Accused, was once again cautioned with the last opportunity to arrange his representation---Lastly, when despite availability of witnesses, the petitioner/accused failed to arrange cross-examination through his counsel, his right of cross-examination was forfeited---Validity---Right of cross-examination, was a most valuable right which would enable an accused confronting a criminal charge to vindicate his position---No statement, except a dying declaration, could be read in evidence to the detriment of a person, likely to be adversely affected by such statement, unless cross-examined---Right of hearing and right of cross-examination, were equally important to ensure a fair trial---Accused was to be afforded a meaningful and reasonable opportunity to canvass his point of view; as well as impeach credibility of the witnesses appearing against him through cross-examination which would not mean that accused would avail those opportunities according to his whims and choice; or he could hold in abeyance the process of law to a point of time of his selection---Legislature in its wisdom had provided a period, no less or no later than seven days---For a valid cause that period could be extended, but within reasonable limit---Incessant adjournments and importunate cross-examinations, were the factors behind social apathy towards civic responsibility to become a witness in aid of justice despite a divine command---Call of strike by the members of the Bar could not be taken as a cover for failure to cross-examine a witness, who was in attendance---Petitioner could not press into service lawyers's strike to indemnify his absence or failure to arrange representation on the witnesses, who were in attendance---Petition under S.561-A, Cr.P.C. was dismissed.
**** : 2016 PLD 405 LAHORE-HIGH-COURT-LAHORE
Side Appellant : IMRAN BASHIR
Side Opponent : RAI BILAL HAIDER
S. 497(5)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail, recalling of---Dispute between an advocate (accused) and complainant (a disabled person) over an agreement to sell---Pre-arrest bail of accused had been confirmed by the court below without pointing out any mala fide of the complainant or of the police, which was a sine qua non for the relief of pre-arrest bail---Observation of court below that complainant was not willing to return the original agreement to sell was not based upon facts because the complainant was admittedly not present before the court on the relevant date---Accused was given reasonable opportunity and time to fulfill his commitment to pay the outstanding amount to the complainant, but the accused failed to do the same---Stubborn attitude of the accused reflected that he had no regard for commitments made before the court---Whereas the complainant was a blind man pursuing present bail cancellation petition regularly despite his disability---Pre-arrest bail confirming order passed by court below was recalled in such circumstances.
**** : 2016 YLRN 93 LAHORE-HIGH-COURT-LAHORE
Side Appellant : HAJI MUHAMMAD
Side Opponent : JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE
S. 489-F---Criminal Procedure Code (V of 1898), Ss.22-A, 22-B & 154---Dishonestly issuing a cheque---Registration of criminal case---Respondent on request of the petitioner gave Rs.2,00,000 to the petitioner as loan, and in lieu thereof the petitioner issued a cheque of the same value in the name of respondent which was dishonoured on presentation to the concerned bank---On application by respondent under Ss.22-A & 22-B, Cr.P.C., Justice of Peace ordered the SHO concerned to record the version of respondent under S.154, Cr.P.C., if commission of cognizable offence was made out---Petitioner, had assailed said order passed by Justice of Peace---Validity---When any information regarding the commission of a cognizable offence was provided to SHO, he was under legal obligation to proceed under S.154, Cr.P.C.---Averments made by the petitioner's Counsel regarding the factual aspects of the matter, if addressed, would amount to resolve the factual controversy, that could not be done by High Court in exercise of its constitutional jurisdiction under Art.199 of the Constitution---Regarding contention qua nature of loan i.e. "Qarz-e-Hasna", which was to be returned when possible/convenience, for the loanee, High Court observed that when the loanee of 'Qarz-e-Hasna' voluntarily and knowingly issued a cheque for a specific date; and even if the same was dis-honoured, it would constitute a cognizable offence in terms of S.489-F, P.P.C.---No illegality or infirmity existed in the impugned order requiring interference by High Court---Constitutional petition was dismissed being devoid of any merits, in circumstances.
**** : 2016 YLRN 41 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD NAWAZ
Side Opponent : State
S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Accused was behind the bars since 10-10-2014---Unexplained delay of 9 months in lodging the FIR---Maximum sentence under S.489-F, P.P.C., was three years---Case did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was no more required for the purpose of investigation---Concession of granting bail in such like cases must be favourably considered---Accused was admitted to post-arrest bail, in circumstances.
**** : 2016 YLR 1640 LAHORE-HIGH-COURT-LAHORE
Side Appellant : HAROON KALEEM USMANI
Side Opponent : State
S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Contention of accused was that allegation against him was not based on any evidence, and he had been dragged into the case through clever tactics of complainant; and that he borrowed some amount of money on interest from complainant and ended up in a vicious circle---Accused also contended that complainant himself admitted before arbitrators that he had been receiving profits against debt amount from accused and it was merely an amount of Rs. 2,60,000 which figured in his books as receivable---Complainant's plea was that accused being a Bank Officer befooled complainant and usurped heavy amount of money from him under the garb of a mortgage-agreement and cheques having been dishonestly issued by accused to complainant were bounced by the Bank one after the other---High Court observed that the probability could not be ruled out that accused had been falsely involved in the present case by complainant through some exaggerative allegations based on malice or ulterior motives---Bail application was accepted and ad interim pre-arrest bail was granted to accused, in circumstances.
**** : 2016 YLR 1002 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHAHZAD AKHTAR alias SAJJAD
Side Opponent : State
Ss. 497 & 87---Penal Code (XLV of 1860), S.489-F---Dishonoring of cheque---Bail, grant of---Abscondence of accused---Accused defrauded his brother-in-law and received a huge amount of Rs. 1,50,00,000 at the rate of 4% and 5% profit per month---Complainant got 10 FIRs under S.489-F, P.P.C., registered against accused and he had still with him 5 more cheques of Rs. 10,00,000 each allegedly issued by accused and bounced by Bank for identical reasons which had not been reported to police as yet---Accused remained as absconder for about one year and he was proceeded against under S.87, Cr.P.C., pending investigation on 21-6-2014---Effect---Accused could not claim that he had no knowledge about registration of case against him---Such was a situation wherein unexplained abscondence of accused would adversely affect his quest for bail---No extra importance could be given to the fact that offence was not covered by prohibitory clause of S. 497(1), Cr.P.C.---In a case not falling under prohibitory clause, accused could not claim bail as a matter of right, unless his case was open to further probe into the guilt within the scope of S.497(2), Cr.P.C., or no exceptionality was attached thereto---Case of accused neither fell within the ambit of further inquiry nor could it be so that it was sans any exceptional element---Details of occurrence revealed that each and every bit of it painted an exceptional situation, bringing it within the category of cases wherein bail could not readily be allowed--- Bail was declined in circumstances.
**** : 2016 PCrLJ 323 LAHORE-HIGH-COURT-LAHORE
Side Appellant : USMAN ALI
Side Opponent : ADDITIONAL SESSION JUDGE/EX-OFFICIO, JUSTICE OF PEACE TOBA TEK SINGH
S. 489-F--- Criminal Procedure Code (V of 1898), Ss. 22-A & 22-B---Dishonouring of cheque---Contractual liability---Cheque in question was issued by appellant in the backdrop of settlement arrived at between parties in terms of agreement in a criminal case registered under S. 489-F, P.P.C.---Ex-officio Justice of Peace passed a direction for registration of FIR against appellant as cheque issued by him was dishonoured---Order passed by Ex-officio Justice of Peace was maintained by Single Judge of High Court---Validity---Cheque in question was given in terms of agreement and it was not issued to create any liability as alleged in application for registration of case---Dishonour of such cheque did not make out offence under S. 489-F, P.P.C.---Just to settle disputes with father of appellant, respondent moved frivolous application by way of concealing real facts and by doing so it was axiomatic that respondent did not approach court with clean hands---Respondent knocked the doors of Ex-officio Justice of Peace with mala fide intention and with ulterior motive in order to involve appellant in criminal proceedings to resolve some private vengeance--- Division Bench of High Court set aside the orders passed by Single Judge High Court and that of Ex-officio Justice of Peace---Intra court appeal was allowed in circumstances.
**** : 2016 PCrLJ 769 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MANSOOR MUMTAZ KHILJI
Side Opponent : State
S. 498---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Cheque issued as security---Mala fide and ulterior motive on part of complainant---Bail before arrest, grant of---Word 'security cheque' were clearly mentioned on the back of the cheque---Complainant had in the FIR, and later before the Investigating Officer, had given two different purposes of issuing the cheque---Cheque, in said stances of the complainant, could not be said to have been issued towards repayment of loan or fulfillment of any obligation---Considering the material available on record, prima facie, the accused appeared to have been involved in the case due to mala fide and ulterior motives of the complainant---Recovery of amount under the disputed cheque could not be effected through criminal proceedings---Interim pre-arrest bail earlier granted to the accused was, therefore, confirmed accordingly.
**** : 2016 PCrLJ 1102 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD ZULFIQAR ALI
Side Opponent : SHO POLICE STATION GHULAM MUHAMMAD ABAD FAISALABAD
Ss. 22-A & 22-B----Penal Code (XLV of 1860), S. 489-F---Specific Relief Act (I of 1877), S. 39---Registration of FIR---Ex-officio Justice of Peace directed the police to register case on basis of dishonored cheque against the accused---Civil court, while decreeing the suit for cancellation of the cheque, had already declared the cheque having been issued without consideration, and said decree, having not been challenged, still held the field---No further action was required, in circumstances---High Court set aside the impugned order regarding registration of FIR--- Constitutional petition was allowed in circumstances.
**** : 2016 YLRN 190 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SAJJAD AHMAD WASEEM
Side Opponent : State
S.498---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Ad-interim pre-arrest bail, recalling of---Accused had issued cheque for repayment of amount to the complainant in presence of two witnesses--- Huge amount (Rs.60,00,000) was involved in the case---Accused had been involved in the commission of alleged offence---Investigation was yet to be completed---No mala fide had been pointed out on the part of complainant or police---No case for pre-arrest bail had been made out---Ad-interim pre-arrest bail already granted to the accused was recalled.
**** : 2015 CLD 1104 LAHORE-HIGH-COURT-LAHORE
Side Appellant : BILAL AHMAD
Side Opponent : JUSTICE OF PEACE/A.S.J.
Ss. 20 & 7---Penal Code (XLV of 1860), S. 489-F---Criminal Procedure Code (V of 1898) S. 154---Constitution of Pakistan, Art. 199---Constitutional petition---Jurisdiction of Banking Court---Cheque issued to Financial Institution by customer as guarantee for return of loan facility---Dishonouring of cheque---Order for registration of FIR under S. 489-F, P.P.C.---Petitioner impugned order of Justice of Peace whereby FIR under S. 489-F, P.P.C. was ordered to be registered against him for dishonouring of cheque issued by him as guarantee to the Financial Institution---Held, that per S. 7 of the Financial Institutions (Recovery of Finances) Ordinance, 2001; no court other than the Banking Court shall have or exercise jurisdiction with respect to any matter to which jurisdiction of the Banking Court was extended to under the said Ordinance---Section 20(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 dealt with the dishonest issuance of cheque and punishment of said offence had been provided in this section and therefore it was obvious that in said matter jurisdiction only lay with the Banking Court and not before any other court---Under S. 20(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001, offences under the Ordinance shall be bailable, non-cognizable and compoundable and S. 154, Cr.P.C. came in field where the commission of a cognizable offence was disclosed---When the statute itself made it clear that the offence was not cognizable, then registration for a criminal case/FIR by local police could not be permitted---High Court observed that even though S. 489-F was inserted after promulgation of the Financial Institutions (Recovery of Finances) Ordinance, 2001; but same would not give it an overriding effect over the Financial Institutions (Recovery of Finances) Ordinance, 2001, which was a special law---Impugned order was set aside--- Constitutional petition was allowed, in circumstances.
**** : 2015 PLD 249 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUMTAZ AKHTAR RANA
Side Opponent : INSPECTOR-GENERAL OF POLICE
S. 489-F---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) S.2(a)---Constitution of Pakistan, Art. 199---Constitutional petition---"Financial institution"---Scope---Petitioner's NGO availed loan from Punjab Health Foundation, and subsequently, on dishonoring of cheque's issued by petitioner, order for registration of F.I.R. against petitioner under S.489-F was issued---Held, that although the Punjab Health Foundation did not come within the purview of the "financial institution" as provided in the Financial Institutions (Recovery of Finances) Ordinance 2001, but being an organization empowered to extend loans, it could be equated with the status of a "Financial Institution"---Provisions of S.489-F of the Penal Code, 1860 could not be attracted where loans were protected by mortgage, warranties, and covenants with regard to ownership, mortgage, pledge, hypothecation or in terms of other purchase on assets of property and financial institutions could only recover the amount by adopting a proper process under any such mode---Loan issued by the respondent in favour of the petitioner, in the present case, had been secured through a mortgage deed and in case of default by the petitioner, mode of recovery had been provided in the agreement between the parties, whereby respondent may issue show-cause notice to the borrower/petitioner to pay the loan along with penalty including sale of mortgaged property and recovery of arrears of land revenue ---In presence of said agreement, the respondent was not competent to resort to provisions of S.489-F of the Penal Code, 1860---Order for registration of F.I.R. against petitioner was set aside---Constitutional petition was allowed, accordingly.
**** : 2015 PCrLJ 87 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD MASOOD KHAN
Side Opponent : JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, BUREWALA DISTRICT VEHARI
S. 489-F---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 7, 9 & 20---Constitution of Pakistan, Art.199---Constitutional petition---Dishonestly issuing a cheque, and default in fulfilment of obligation---Jurisdiction of Banking Court---Scope---Petitioner instituted a suit for declaration and rendition of accounts along with permanent injunction against the respondent/bank in Banking Court---Court passed injunctive order in favour of petitioner, wherein respondent/bank was restrained to adopt any illegal coercive measures for recovery of loan against the petitioner---Bank which did not put in appearance, moved an application before Justice of Peace for registration of criminal case against the petitioner---Cheque in question issued by the petitioner in favour of the bank, was dishonoured on presentation due to insufficient amount---Justice of Peace vide impugned order, ordered registration of criminal case against the petitioner---Contention of the petitioner was that he being a "customer" and bank being 'Financial Institution', bank could adopt recourse to the procedure under Financial Institutions (Recovery of Finances) Ordinance, 2001 for recovery of its defaulted loans by filing proceedings against the delinquent defaulters with the Banking Court having exclusive jurisdiction to adjudicate and decide such matter---Validity---By obtaining impugned order from Justice of Peace, ultimate object of bank was for initiation of proceedings under S.489-F, P.P.C. as cheque issued by the petitioner in favour of the bank was dishonoured---Object of the Financial Institutions (Recovery of Finances) Ordinance, 2001, and to initiate proceedings under P.P.C., were entirely different, as both the enactments, could not be amalgamated or confused with each other---Civil liability existed between the parties and diverting the same into criminal offence where a complete recourse for recovery of such liability was provided under Financial Institutions (Recovery of Finances) Ordinance, 2001, seemed to be with mala fide intention and ulterior motive---Section 20(4) of said Ordinance, provided the remedy wherein cheque dishonestly issued and dishonoured because of insufficient funds, would be governed by said section of law, bank could file a direct complaint in the Banking Court---Bank could avail remedies available under said Ordinance for recovery of its debt, as well as for dishonoured cheque---Proceeding further on the basis of impugned order would be abuse of process of the court and without lawful authority---Order accordingly.
**** : 2015 PCrLJ 1514 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD NAWAZ
Side Opponent : State
S. 489-F---Criminal Procedure Code (V of 1898), S.22-A---Constitution of Pakistan, Art.199---Constitutional petition---Dishonestly issuing a cheque---Registration of case ordered by Justice of Peace---Petition for quashing of said order---High Court suspended operation of impugned order of Justice of Peace---Police had purportedly complied with order passed by Justice of Peace and registered FIR, without realizing that operation of that order had already been put on hold---Restraining order passed by a court, would go into effect, the very moment it was passed, regardless of the fact, whether the same was conveyed to quarters concerned or not---Plea of SHO that injunctive order passed by the High Court in constitutional petition was not communicated to him at the time of registration of FIR in question, was of no avail to him---Injunctive order was passed by High Court at 8-30 am., and in view of distance between the court and the Police Station, argument that the order was not duly conveyed to SHO, could not be accepted---FIR having been registered in contravention of lawful order passed by the High Court, could not be allowed to stand---Registration of FIR being abuse of process of law, was quashed, in circumstances.
**** : 2015 PLD 78 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD IRFAN
Side Opponent : State
S. 489-F---Qanun-e-Shahadat (X of 1984), Arts.59 & 84--- Constitution of Pakistan, Arts.10-A & 199---Constitutional petition--- Dishonestly issuing a cheque---Expert opinion-Comparison of signatures-Right of fair trial---Petitioner was facing trial on allegation of dishonestly issuing bank cheque which was dis-honoured on presentation-Petitioner denied issuing of any cheque and his application for getting comparison of his signatures on cheque from Hand Writing Expert :vas dismissed by Trial Court as well as lower Appellate Court---Validity---Power of Trial Court to itself compare cheque in dispute with admitted signatures of complainant (petitioner), as envisaged under Art.84 of Qanun-e-Shahadat, 1984, did not debar Trial Court form sending the cheque for comparison to Finger Print Expert---Expert evidence was admissible in evidence under Art.59 of Qanun-e-Shahadat, 1984, and if such evidence was not available, only then Trial Court could itself compare the cheque with admitted signatures of petitioner-Petitioner was entitled to fair trial, in view of Art.10-A of the Constitution-Denial on the part of Trial Court to send cheque it: dispute to Finger Print Expert, was violative of the provisions of Qanun-e-Shahadat, 1984---Trial Court as well as lower Appellate Court failed to exercise their jurisdiction vested in them under law and had illegally dismissed application submitted by petitioner-Petition was allowed in circumstances.
**** : 2015 YLR 853 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHAHID MANZOOR
Side Opponent : State
S. 489-F---Criminal Procedure Code (V of 1898), S.417(2-A)---Limitation Act (IX of 1908), S.5---Dishonestly issuing a cheque---Appeal against acquittal---Limitation---Delay, condonation of---Applicability of S.5, Limitation At, 1908---Appeal against acquittal was filed with a delay of three days---Delay in filing of appeal against the acquittal, would be condoned in those cases where appellant was prevented by an act of accused to file appeal in time or was actually kept out of knowledge of the appeal---Reasons stated by appellant/petitioner in support of application for condonation of delay, were vague; and appellant had failed to make out case for condonation of delay in filing appeal---Provisions of S.5 of Limitation Act, 1908 were not applicable to appeal against acquittal.
**** : 2015 PCrLJ 1050 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD ASHRAF
Side Opponent : State
S. 498---Penal Code (XLV of 1860), S. 489-F---Negotiable Instruments Act (XXVI of 1881), S. 84---Dishonoured cheque---Pre-arrest bail, grant of---Negotiable instrument---Delayed presentation of cheque---Non-filing of recovery suit---Cheque in question was issued on 25-2-2011 and was presented for payment on 11-11-2013, when it was bounced due to insufficient funds---Plea raised by accused was that FIR was registered with mala fide intention---Validity---Cheque in question was a negotiable instrument which was presented to bank after lapse of about 30 months---Cheque was required under S.84 of Negotiable Instruments Act, 1881, to be presented for payment within a reasonable time of its issue---Dishonest intention in issuing a cheque was sine qua non to attract offence under S. 489-F, P.P.C., which was yet to be established after having recourse to evidence---No date, time or place of alleged payment of Rs.8 million by complainant to petitioner was mentioned in FIR---Complainant did not file any suit against accused for recovery of disputed amount---Cheque was in possession of complainant, therefore, no recovery was pending against accused---Offence under S. 489-F, P.P.C. did not fall within the prohibitory clause of S. 497, Cr.P.C.---Plea of malice raised by accused could not be discarded outrightly---Object of pre-arrest bail was to save innocent persons from humiliation, harassment and incarceration on the basis of false implication--- Pre-arrest bail was allowed in circumstances.
**** : 2015 PCrLJ 1566 LAHORE-HIGH-COURT-LAHORE
Side Appellant : KHIZAR HAYAT
Side Opponent : JUDICIAL MAGISTRATE
S. 489-F---Qanun-e-Shahadat (10 of 1984), Arts.133 & 134---Criminal Procedure Code (V of 1898), S.561-A---Dishonestly issuing a cheque---Right of cross-examination, closing of---Accused avoiding to cross-examination witness---Duty of court---Quashing of order---Cross-examination of witness---Document not part of challan was produced during cross-examination of witness---Admissibility---Statement of complainant was recorded during the trial---Partial cross-examination on the complainant was conducted by defence counsel, while for remaining cross-examination, defence counsel showed his inability, upon which Trial Court closed the right of further cross-examination---Revision petition, filed against order of the Trial Court was accepted with the observation that Trial Court after receiving back the judicial record would fix a date giving one more opportunity to defence counsel to conclude the cross-examination---Validity---Objection that the document which was not part of challan, same could not be exhibited or taken into consideration during cross-examination of witness, was devoid of force, as same was produced by the witness on the asking of defence counsel during cross-examination, and same was exhibited by the Trial Court---No bar existed to produce document, especially, when a particular question was asked by the defence counsel to witness regarding the production of the same before the Police during investigation---Court could not refuse to admit the document which was relevant for the decision of the case---Search of truth was the primary duty imposed upon the court for administration of justice and court could not base its opinion, merely on technicalities---No right was explicitly available to accused to secure legal representation at State expenses in the matters, other than entailing capital punishment---In such like cases, it was the duty of the Trial Court itself to put up a cross-examination on behalf of an un-represented accused, or who himself intentionally avoiding to cross-examine the witness---When defence counsel was constantly, not showing his appearance, it was the obligation of the Trial Court to put question itself to defend the cause of accused, or to offer accused to cross-examine the witness, in order to ascertain truth for just decision of the case---Cross-examination was a valuable right of an accused, and was the only vehicle through which the truth and falsity of the witness could be determined---Trial Court would be at liberty to receive in evidence any admissible document despite the same was not annexed with report under S.173, Cr.P.C., if said document would meet the standards of admissibility, and was necessary for the just decision of the case and also would allow cross-examination thereon---Trial Court was directed by High Court to give one more chance to the accused to complete cross-examination.
**** : 2015 MLD 1266 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Syed MUBASHAR ALI
Side Opponent : State
Ss. 498 & 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail, grant of---"Pre-arrest bail" and "post-arrest bail"---Distinction---Accused though was nominated in the crime report, but High Court had to see from the facts and circumstances as to whether ingredients of pre-arrest bail were made out or not---Marked distinction existed between "pre-arrest bail" and "post-arrest bail" and considerations for both were on different footing---Scope of "pre-arrest bail" was wide---In the present case, delay of six months occurred in lodging of the crime report, for which no plausible explanation had been rendered---Cheque in question was filled in with different handwriting, and difference was in between the filling of entries and the signatures of accused---Cheque in question, having been issued during business transactions, civil litigation had been culminated into criminal liability---Culpability of accused, would be determined by the Trial Court during trial after recording of evidence---Punishment of offence, alleged to have been committed by accused, was three years, which did not fall within the prohibition contained in S.497(1), Cr.P.C.---Grant of bail in such like case, was a rule, and refusal an exception---Liberty of person was precious right, which could not be denied, only on the basis of bald allegation---Sending accused behind the bars, would serve no useful purpose---Ad interim pre-arrest bail, already granted to accused, was confirmed, in circumstances.
**** : 2015 PCrLJ 1473 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD IRSHAD
Side Opponent : State
Ss. 498 & 498-A---Penal Code (XLV of 1860), S.489-F---Dishonoring of cheque---Pre-arrest bail, grant of---Absence of accused---Trial Court declined pre-arrest bail to accused due to his absence at the time of hearing of bail application---Validity---Act of accused not appearing before Court of first instance when his petition seeking pre-arrest bail was being heard had a direct effect on the outcome of the case---Accused by not appearing in person before Trial Court had disentitled himself for the grant of pre-arrest bail by High Court---Although accused was charged with offence which carried maximum punishment of three years imprisonment and did not fall within the prohibitory clause of S.497, Cr.P.C. would not entitle the accused to grant of pre-arrest bail as of right---Pre-arrest bail was declined, in circumstances.
**** : 2014 YLR 882 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Syed SHAN ABBAS
Side Opponent : State
S. 489-F---Dishonestly issuing a cheque---Scope---Dishonoured cheque handed over/given by accused but not issued by him---Question as to whether S.489-F, P.P.C would be attracted where dishonoured cheque was merely handed over by accused but was issued by some other person (i.e. from someone else's account)---Section 489-F, P.P.C applied to those cases only where cheque was issued by the accused himself and not in any other case.
**** : 2014 PCrLJ 424 LAHORE-HIGH-COURT-LAHORE
Side Appellant : IMTIAZ ALI alias BHOLA
Side Opponent : State
S. 489-F---Dishonestly issuing a cheque---Offence under S.489-F, P.P.C.---Purpose---Offence under S.489-F, P.P.C. was designed to penalize a person who issued a cheque knowing that it would be dishonoured---Said offence was not a device or mechanism to recover a disputed amount.
**** : 2014 PCrLJ 218 LAHORE-HIGH-COURT-LAHORE
Side Appellant : M. SAJJAD ANWAR
Side Opponent : C.C.P.O.
S. 489-F---Criminal Procedure Code (V of 1898), S.22-A---Constitution of Pakistan, Art. 199---Constitutional petition---Decree of Civil Court---Criminal proceedings, setting aside of---Issuance of cheque under coercion---Proof---Respondent sought order from Ex-Officio Justice of Peace for registration of case under S.489-F, P.P.C. against petitioner---Petitioner filed civil suit which was contested and subsequently Civil Court had decreed the suit in favour of petitioner on the ground that cheque in dispute was obtained from petitioner under coercion and did not incur any liability in favour of defendant of suit (respondent)---Validity---After decree of suit and declaration of cheques in dispute being obtained by exerting undue influence there was no need to lodge criminal case under S.489-F, P.P.C. against petitioner---High Court in exercise of Constitutional jurisdiction set aside order passed by Ex-officio Justice of Peace resulting into dismissal of application under S.22-A, Cr.P.C. filed by respondent---Petition was allowed in circumstance.
**** : 2014 YLR 1616 LAHORE-HIGH-COURT-LAHORE
Side Appellant : BASHIR AHMAD
Side Opponent : JUSTICE OF PEACE/A.S.J., MUZAFFARGARH
S. 489-F---Criminal Procedure Code (V of 1898), S.22-A---Constitution of Pakistan, Art.199---Constitutional petition--Dishonesty issuing a cheque----Application for registration of case to Justice of Peace---Conducting of inquiry by Justice of Peace before issuing order---Scope---Petitioner was aggrieved of order passed by Ex-Officio Justice of Peace whereby he conducted inquiry into the matter and then ordered Station House Officer to proceed in accordance with law---Validity---Petitioner admitted to have made out cheque in question and also admitted his thumb-impression on it, which was handed over to complainant---Controversy with regard to return of entire amount by petitioner and nothing to be outstanding against him could not be resolved by Ex-Officio Justice of Peace while exercising his powers under S. 22-A, Cr.P.C.---Inquiry into the fact was to be undertaken subsequent to registration of F.I.R. and was not to be conducted before passing any order under S. 22-A, Cr.P.C.---High Court declined to interfere in the order passed by Ex-Officio Justice of Peace---Petition was dismissed in circumstances.
**** : 2014 PCrLJ 424 LAHORE-HIGH-COURT-LAHORE
Side Appellant : IMTIAZ ALI alias BHOLA
Side Opponent : State
S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Recovery of a disputed amount by means of S.489-F, P.P.C.---Propriety---Complainant alleged that he supplied some material to the accused, who in order to satisfy his liability issued the cheque in question, which got dishonoured on presentation before the bank---Complainant contended that accused was previously involved in a similar case registered under S.489-F, P.P.C., therefore, he did not deserve the concession of bail---Validity---Accused was acquitted in the previous F.I.R. referred to by the complainant---Maximum punishment provided under S.489-F, P.P.C. was three years' imprisonment---Challan had been submitted in court---Offence under S.489-F, P.P.C. was not a device or mechanism to recover a disputed amount---Accused was admitted to bail accordingly.
**** : 2014 YLR 567 LAHORE-HIGH-COURT-LAHORE
Side Appellant : RIZWAN ALI KHAN
Side Opponent : State
S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Delay of six months in registration of F.I.R., had not been explained thus showing that same was recorded after due deliberation and consultation---Accused was previous non-convict and never involved in any other case---Offence with which accused was charged did not fall under the prohibitory clause of S.497, Cr.P.C.---Accused was behind the bars since 7-2-2013---Investigation of the case was complete, and accused being no more required for further investigation, his further incarceration in jail would not serve any useful purpose---Section 489-F, P.P.C., was not a mechanism for the recovery of amount, but it was just a penal section and carried punishment of three years only---Complainant, ultimately had to file suit in the civil court under Order ###VII, C.P.C. for the recovery of his amount---Accused was admitted to bail, in circumstances.
**** : 2014 CLD 92 LAHORE-HIGH-COURT-LAHORE
Side Appellant : KHUSHI MUHAMMAD
Side Opponent : MUZAMMAL KHATOON
O. ###VII, Rr. 2, 3 & Appendix B, Form No. 4---Limitation Act (IX of 1908), Art. 159--- Penal Code (XLV of 1860), S. 489-F---Institution of summary suit on negotiable instrument---Dishonouring of cheque issued as guarantee---Suit for recovery of money---Application for leave to appear and defend the suit---Limitation---Plaintiffs-respondents filed suit for recovery of money wherein application for permission to appear and defend the suit was moved by the defendant-petitioner which was dismissed by the Trial Court---Contention of defendant-petitioner was that he was not served in accordance with law---Validity---Report of the Process Server did not show that he delivered the copy of the plaint and other documents appended therewith---In a suit under O. ###VII, R. 2, C.P.C., the summons was to be issued on Form IV of Appendix-B and it was imperative that the copy of the plaint with annexures should be sent under O.###VII, R.2(1), C.P.C. along with the summons and without fulfilment of that legal requirement, the service was not complete and the period of limitation did not start---Copy of the plaint did not appear to have been sent along with the summons, the period of ten days prescribed for submission of the application for leave to appear and defend the suit under Art.159 of the Limitation Act, 1908 did not start---Defendant-petitioner did not owe any amount directly and he had issued the cheque as surety for his son, who was involved in a case under S.489-F, P.P.C. and according to the agreement deed executed between the parties, the cheque was issued as guarantee and the predecessor of the plaintiffs-respondents also reserved the right to move an application for cancellation of the bail granted to son of the defendant-petitioner---Whether the suit under O.###VII, R. 2, C.P.C. was maintainable and the defendant-petitioner was in fact liable to make the payment required adjudication and verdict of the Trial Court and such aspect of the matter alone was sufficient to allow the application submitted by the defendant-petitioner---When important questions of fact and law emerged, then the court must exercise its jurisdiction under O.###VII, R.3, C.P.C. and should not hesitate in granting the leave to appear and defend the suit---Trial Court erred in dismissing the application by ignoring the important legal aspects of the matter and committed material irregularity causing gross miscarriage of justice---Impugned order was not sustainable under the law---Revision petition was accepted and impugned order was set aside and leave to appear and defend the suit was granted accordingly.
**** : 2014 YLR 1171 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD ASHRAF CHOUDHRY
Side Opponent : State
S. 497(2)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Further inquiry---F.I.R. was lodged after inordinate delay of five months, without assigning any sufficient reason for such delay---Complainant, prior to registration of present case had also got recorded a case under S.489-F, P.P.C. against accused with the same allegation, but the complainant had concealed that fact---Plea of accused that cheques were given to complainant as guarantee, could not be discarded outright---Dishonest intention in issuing the cheque was sine qua non to attract the offence under S.489-F, P.P.C., which was yet to be established during course of evidence---Alleged guilt of accused, in circumstances was necessarily a matter of further probe---No recovery was pending against accused---Offence under S.489-F, P.P.C. did not fall within the prohibitory clause of S.497, Cr.P.C.---Investigation of the case was complete and accused was behind the bars since 22-1-2014, and accused was no more required by the Police for further investigation---No progress in the trial, despite submission of challan---Accused's incarceration, was not likely to serve any cause of justice---Bail could not be refused, in such like cases, as a matter of punishment---Prosecution had not produced any material with regard to accused's conviction in any of other criminal cases allegedly registered against him---Mere pendency of any other criminal case, was no hindrance for grant of post-arrest bail to accused, who otherwise was entitled to the relief on merits---Accused was admitted to bail, in circumstances.
**** : 2014 CLD 45 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD ASIF NAWAZ
Side Opponent : ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE MULTAN
S. 20(4)---Criminal Procedure Code (V of 1898), S.22-A---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art.199---Constitutional petition---Re-payment of finance---Dishonoring of cheques---Petitioner obtained loan from bank and for its return issued cheque which was dishonored on presentation---Ex-Officio Justice of Peace, on application filed by complainant bank, directed police to record statement of complainant and proceed in accordance with law---Grievance of petitioner was that no criminal case could be registered against him---Validity---Jurisdiction was only with Banking Court established under Financial Institutions (Recovery of Finances) Ordinance, 2001, and not before any other court until and unless the same was provided by law, by which financial institution was established---If Legislature had any intention, it could have, at the very beginning formulate or afterwards could amend Financial Institutions (Recovery of Finances) Ordinance, 2001, in such a manner so as to bring the offence within definition of "cognizable" offence---When amendment was not made in Financial Institutions (Recovery of Finances) Ordinance, 2001, Legislators explicitly made their intention clear that with regard to matters between financial institutions and their customers, therefore, such enactment would hold the field and S.489-F, P.P.C. would be applicable to all other persons in general except those covered by Financial Institutions (Recovery of Finances) Ordinance, 2001---Purpose by not amending Financial Institutions (Recovery of Finances) Ordinance, 2001, was that normally in any case of loan from financial institution, loans were protected by mortgage, warranties and covenants with regard to ownership, mortgage, pledge, hypothecation or assignment of or other charges on assets or properties and financial institution could recover the amount by adopting appropriate process under any of such modes---High Court set aside order passed by Ex-Officio Justice of Peace---Petition was allowed accordingly.
**** : 2014 PCrLJ 1 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD ASIF NAWAZ
Side Opponent : ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE MULTAN
S. 489-F---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.20 (4)---Criminal Procedure Code (V of 1898), S.22-A---Constitution of Pakistan, Art.199---Constitutional petition---Re-payment of finance---Dishonouring of cheques---Petitioner obtained loan from bank and for its return issued cheque which was dishonoured on presentation---Ex-Officio Justice of Peace, on application filed by complainant bank, directed police to record statement of complainant and proceed in accordance with law---Grievance of petitioner was that no criminal case could be registered against him---Validity---Jurisdiction was only with Banking Court established under Financial Institutions (Recovery of Finances) Ordinance, 2001, and not before any other court until and unless the same was provided by law, by which financial institution was established---If Legislature had any intention, it could have, at the very beginning formulate or afterwards could amend Financial Institutions (Recovery of Finances) Ordinance, 2001, in such a manner so as to bring the offence within definition of "cognizable" offence---When amendment was not made in Financial Institutions (Recovery of Finances) Ordinance, 2001, Legislators explicitly made their intention clear that with regard to matters between financial institutions and their customers, therefore, such enactment would hold the field and S.489-F, P.P.C. would be applicable to all other persons in general except those covered by Financial Institutions (Recovery of Finances) Ordinance, 2001---Purpose by not amending Financial Institutions (Recovery of Finances) Ordinance, 2001, was that normally in any case of loan from financial institution, loans were protected by mortgage, warranties and covenants with regard to ownership, mortgage, pledge, hypothecation or assignment of or other charges on assets or properties and financial institution could recover the amount by adopting appropriate process under any of such modes---High Court set aside order passed by Ex-Officio Justice of Peace---Petition was allowed accordingly.
**** : 2014 MLD 506 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ASIM ALI KHAN
Side Opponent : State
S. 497---Penal Code (XLV of 1860), S 489-F---Dishonestly issuing a cheque---Bail, grant of---Cheque issued on basis of a business transaction---Dispute of civil nature---Delay in lodging F.I.R.---Effect---Accused had purchased some leather from the complainant and for payment of outstanding amount, he issued nine cheques in favour of complainant which were dishonoured on presentation before the Bank---Plea of accused was that cheques in question were only given as a guarantee/security---Validity---Although accused was named in the F.I.R., but there was an unexplained delay of more than 5 months in lodging the F.I.R.---Relationship between complainant and accused was that of a seller and purchaser---Dispute between the parties concerned adjustment of a liability and complainant himself failed to mention the dates on which leather was purchased by the accused---Prima facie, dispute seemed to be of a civil nature and for such purpose complainant had the remedy to file a suit for recovery or rendition of accounts before the court of competent jurisdiction---Question as to whether cheques in question were issued towards fulfilment of an "obligation" or as "security" would be seen by the Trial Court after recording of evidence---Offence alleged did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Accused was behind bars for the last eight months and was no more required for further investigation---Accused was granted bail in circumstances.
**** : 2014 CLD 858 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD MASOOD KHAN
Side Opponent : JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE
Ss. 7, 9 & 20---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 199--- Constitutional petition---Dishonestly issuing a cheque, and default in fulfilment of obligation---Jurisdiction of Banking Court---Scope---Petitioner instituted a suit for declaration and rendition of accounts along with permanent injunction against the respondent/bank in Banking Court---Court passed injunctive order in favour of petitioner, wherein respondent/bank was restrained to adopt any illegal coercive measures for recovery of loan against the petitioner---Bank which did not put in appearance, moved an application before Justice of Peace for registration of criminal case against the petitioner---Cheque in question issued by the petitioner in favour of the bank, was dishonoured on presentation due to insufficient amount---Justice of Peace vide impugned order, ordered registration of criminal case against the petitioner---Contention of the petitioner was that he being a "customer" and bank being 'Financial Institution', bank could adopt recourse to the procedure under Financial Institutions (Recovery of Finances) Ordinance, 2001 for recovery of its defaulted loans by filing proceedings against the delinquent defaulters with the Banking Court having exclusive jurisdiction to adjudicate and decide such matter---Validity---By obtaining impugned order from Justice of Peace, ultimate object of bank was for initiation of proceedings under S.489-F, P.P.C. as cheque issued by the petitioner in favour of the bank was dishonoured---Object of the Financial Institution (Recovery of Finances) Ordinance, 2001, and to initiate proceedings under P.P.C., were entirely different, as both the enactments, could not be amalgamated or confused with each other---Civil liability existed between the parties and diverting the same into criminal offence where a complete recourse for recovery of such liability was provided under Financial Institutions (Recovery of Finances) Ordinance, 2001, seemed to be with mala fide intention and ulterior motive---Section 20(4) of said Ordinance, provided the remedy wherein cheque dishonestly issued and dishonoured because of insufficient funds, would be governed by sai
