Haji SARDAR KHALID SALEEM vs MUHAMMAD ASHRAF and otherss

ORDER

' CH. IJAZ AHMAD, J.--- The brief facts out of which present petition arises are that respondent No,1 filed a Constitutional Petition No,3959-Q of 2003 with the prayer for quashment of F.I.R. 324 which was registered against him under sections 420, 468, 471, 489-F, P.P.C. On the written complaint of petitioner. The constitutional petition was accepted by the learned Single Judge vide impugned order, dated 23-10-2003 that the cheque in question was issued prior to the promulgation of Criminal Law (Amendment) Ordinance No,LXXXV on 25th October, 2002, therefore, respondent No,1 could not be charged for an act which was not an offence at the time of its commission. Petitioner being aggrieved filed Intra-Court Appeal No,158 of 2003 before the Division Bench of the Lahore High Court, which was dismissed vide order, dated 4-3-2004 on the ground that Intra-Court Appeal was not maintainable before the Division Bench in view of law laid down by this Court reported as Nawazul Haq Chowhan v. The State and another 2003 SCM R 1597. Petitioner being aggrieved filed this petition challenging the vires of the impugned order of the learned Single Judge dated 23-10-2003. Office has raised objection that petition is time-barred by 70 days. As the impugned order in the constitutional petition was passed on 23-10-2003 whereas the petitioner had filed present petition before this Court on 22-3-2004.

2. Learned counsel for the petitioner submits that he does not challenge the vires of the order, dated 4-3-2004 passed in I.C.A. No,158 of 2003 as the order, dated 23-10-2003 is not in consonance with the law, laid down by this Court. He further submits that learned Lahore High Court erred in law to accept the constitutional petition merely on the ground that section 489-F was not in the field at the time of issuing cheque by the respondent to the petitioner without realizing and application of mind. That the F.I.R. In question was registered against the respondent under sections 420, 468, 471 and 489-F of P.P.C., therefore, impugned order of the Lahore High Court in constitutional petition is not sustainable in the eyes of law.

3. Learned counsel for the respondent submits that petitioner filed Intra-Court Appeal against the impugned order, passed in constitutional petition on 23-10-2003 which was dismissed by the Division Bench and that the Intra-Court Appeal was not maintainable in view of law laid down by this Court in Nawazul Haq Chowhan v. The State and another 2003 SCM R 1597. He further submits that negligence of the counsel is the negligence of the party and the petitioner has failed to furnish sufficient ground for condonation of delay, therefore, this petition is highly time-barred as the petitioner has to explain the delay, of each day which is not forthcoming. He further submits that dispute between the parties is of a civil nature, therefore, the learned Single Judge was justified to quash the F.I.R. In question.

4. We have given our anxious consideration to the contention of the learned counsel of the parties and perused the record. The contention of learned counsel for the respondent that dispute between the parties is of civil nature has no force in view of law laid down by this Court in Ahmad Saeed v. The State 1996 SCM R 186.

5. It is also settled law that criminal proceedings are not barred in presence of civil proceedings and that civil and criminal proceedings can be proceeded simultaneously. Reference can be made to the following cases:-- ' Talab Hussain v. Anar Gul Khan and 4 others 1993 SCM R 2177 and Deputy Inspector-General of Police v. Anees-ur-Rehman Khan PLD 1985 SC 134.

6. It is also settled law that if, prima facie, an offence had been committed, the ordinary course of trial before the Court should not to be allowed to be deflected by resorting constitutional jurisdiction of High Court. By accepting the constitutional petition the High Court erred in law to short circuit the normal procedure of law as provided by law while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court in Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353.

7. Mere mentioning of section 489-F in the F.I.R. Is no ground to quash the F.I.R. By the learned High Court while exercising power under Article 199 of the Constitution without adverting to the contents of the F.I.R. And other offences mentioned therein. The respondent had alternative remedy to raise objection at the time of framing charge against him by the trial Court or at the time of final disposal of the trial by the trial Court after recording the evidence. Even otherwise, respondent has more than one alternative remedies before the trial Court under the Criminal Procedure Code i,e, Section 265-K or 249-A. This fact was also not considered by the learned High Court. In case the contents of the writ petition and the F.I.R. Are put in juxtaposition then it brings the case of respondent No,1 in the area of disputed question of fact which cannot be decided by the learned High Court in constitutional jurisdiction which requires investigation and evidence of the parties to be recorded by the trial Court. Therefore, the learned High Court erred in law in accepting the constitutional petition by quashing the F.I.R. At the initial stage which was not approved by this Court in the following judgments:-- ' Ghulam Muhammad v. Muzamal Khan and 4 others PLD 1967 SC 317; Mohsin Ali and another v. The State 1972 SCM R 229; Abdul Rehman v. Muhammad Hayat Khan 1980 SCM R 311; Marghoob Alam and another v. Shams-ud-Din and others 1986 SCM R 303; Manzoor Hussain Shah v. The State 1986 SC 265; Sheikh Muhammad Yameen v. The State 1973 SCM R 622 and Bashir Ahmad v. Zafar-ul- Islam PLD 2004 SC 298.

8. In view of the aforesaid discussions the learned Lahore High Court erred in law to accept the constitutional petition of respondent No,1 vide order, dated 23-10-2003 which is not in consonance with the law laid down by this Court coupled with the fact that in the present case, it is an admitted fact that the cheque in question was issued by the respondent to the petitioner which was dishonoured, therefore, ingredients of sections 420, 468 and 471 of P.P.C. Are, at least prima facie, attracted. Therefore, this petition is converted into an appeal which is allowed and the impugned order is set aside. It is also settled proposition of law that this Court has ample jurisdiction to condone the delay in case the party approaches wrong forum in view of the law laid down by this Court in Shirin and 4 others v. Fazal Muhammad and 4 others 1995 SCM R 584. Coupled with the fact that the impugned order of the learned High Court is not in consonance with the dictum laid down by this Court, therefore, we condone the delay. Copy of this order shall be sent to the S.H.O.

Concerned for information and necessary action in accordance with law.