Sardar Hafeez Loni Versus State

Shaukat Ali Rakhshani, J .--- The petitioner has put in the captioned constitutional petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") and Quashment Petition under section 561-A Cr.P.C.

2. The petitioner in C.Ps Nos.1745 and 1746 of 2022 seeks annulment of Orders dated 20.07.2022 penned down by Judicial Magistrate-1/MFC, Quetta ("Trial Court"), whereby his application under section 249-A Cr.P.C was dismissed and upheld by learned Additional Sessions Judge-VII Quetta ("Revisional Court") vide order dated 15.10.2022 pursuant to FIR Nos. 201/2013 and 63/2014. Whereas, Petition No.564 of 2022 relates to quashment of FIR No.84 of 2013 filed before submission of challan.

Through C.Ps. Nos.1374, 1375 and 1376 of 2023, the petitioner has called in question orders dated 10.06.2023 passed by the Judicial Magistrate-XI, Quetta against modification in respect of local commission to record statement of the complainant and order dated 26.08.2023 rendered by learned Additional Sessions Judge-VII Quetta, which upheld the impugned orders and dismissed the revision petition.

3. As the lis in hand are knitted with a similar thread of factual and legal controversies, therefore, the captioned petitions are decided through this consolidated judgment.

4. Chronological facts essential for disposal of the instant petitions are that complainant Allah Noor Davi (respondent No.2) being proprietor of a Tractor Company sold out a number of Tractors and different machineries to the petitioner, who in lieu thereof issued a post-dated cheque bearing No. 946781 dated 24.05.2009 of Rs.125,000,000/- which was when presented in bank for encashment, it was dishonoured, thus, the complainant lodged FIR bearing No.10/2012 against the petitioner for dishonestly issuing cheque and simultaneously also filed a summary suit under Order XXXVII Rule 2, C.P.C., however, the matter between the parties was resolved through arbitration, whereby outstanding amount was reduced from Rs.125,000,000/- to Rs.90,000,000/-, henceforth Judicial Magistrate Magistrate-II, Quetta acquitted the petitioner in case vide FIR No.10/2012. It was agreed that the amount of Rs.90,000,000/- was to be paid through installments, thus, the petitioner issued seventeen cheques, one of Rs.60,00,000/- (sixty lacks) and remaining post dated cheques of Rs.50,00,000/- (fifty lacks), which had to be paid after every four months till the outstanding amount is paid and that when cheque bearing No. 8445634 dated 01.06.2013 of Rs.60,00,000/- (sixty lacks) was presented for encashment, it was dishonoured, whereupon complainant Allah Noor Davi got lodged FIR No. 201 of 2013 with P.S City Quetta, subsequently complainant Allah Noor Davi presented 2nd cheque bearing No. 8445635 dated 01.10.2023 of Rs.50,00,000/- (fifty lacks), which also got dishonoured, thus, complainant got lodged FIR No. 84/2013 with P.S Jinnah Town, whereafter the complainant presented 3rd cheque bearing No.8445636 dated 01.02.2014 of Rs.50,00,000/- (fifty lacks), it met the same fate for it was dishonored as usual, henceforth the complainant got lodged another FIR No. 63/2014 with P.S City Quetta.

Before the challan could be submitted pursuant to FIR No. 84/2013, the petitioner filed quashment petition bearing No.564/2022, however the prosecution in the meanwhile filed challans in pursuance of aforementioned FIRs in order to indict the petitioner, however to get acquittal, the petitioner filed applications under section 249-A Cr.P.C in cases vide FIR Nos. 201 of 2013 and 63 of 2014, which were dismissed vide orders dated 20.07.2022, henceforth the petitioner filed C.Ps. Nos. 1745 and 1746 of 2022, seeking acquittal.

5. During trial, the complainant filed an application for recording statement through E-System, which was allowed vide order dated 27.12.2022 by the Trial Court, but due to some technical issues, it could not be implemented as such, the Trial Court modified the said order by passing the impugned Order dated 10.06.2023 appointed one man commission comprising of Mr. Muhammad Naeem Kakar Advocate to record the statement of complainant Allah Noor Davi at his residence, which order has been assailed through C.Ps. Nos.1374,1375 and 1376 of 2023.

6. Learned counsel for the petitioner while arguing acquittal in C.Ps. Nos.1745, 1746 of 2022 and Quashment petition No. 654 of 2022 inter alia contended that after lodging FIR No.201/2013, the subsequent FIRs Nos.84/2013 and 63/2014 amounts to double jeopardy, thus, not only the subsequent FIRs, but the FIR No.201/2013 is also liable to be quashed for being unwarranted. He also argued that there is no probability of accused being convicted on the basis of available evidence, therefore, the trial is abuse of process of law, which requires to be set at naught and consequently, the appellant requires to be acquitted of the charge. The petitioner, while arguing C.Ps. Nos.1374,1375 and 1376 of 2023 submitted that due to apprehension of breach of peace, it would not be appropriate to record the statement of the complainant at his residence by the commission, therefore, the impugned order dated 10.06.2023 requires to be set aside.

Conversely, Mr. Muhammad Younus Mengal, learned Additional P.G as well as M/S Shabbir Sherani and Zubair Davi Advocates, while supporting the impugned orders rendered in all the captioned petitions argued that separate FIRs have been lodged because it emanates from different transactions, whereby the cheques were dishonoured, thus, it is not a case of double jeopardy. In respect of C.Ps. Nos.1374,1375 and 1376 of 2023 it was contended that the petitioner has failed to show any legal error, causing prejudice to him, thus, the petitions require dismissal.

7. Heard. Record perused. Record visualizes that in discharge of liability relating to sale transaction of Tractors and machineries, the petitioner issued a cheque bearing No.946781 worth Rs.125,000,000/- which was dishonoured, whereof beside filing a summary suit by the complainant Allah Noor, he also got lodged FIR No.10/2012, however, due to arbitration the matter was settled and the cases were disposed of in terms of new agreement arrived at between the adversarials, whereby an amount of Rs.125,000,000/- was reduced to Rs.90,000,000/- whereof several post-dated cheques were issued. It transpires that when the first cheque bearing No.8445634 dated 01.06.2023 of Rs.60,00,000/- was presented, it got dishonored, whereupon FIR No. 201/2013 was got registered. Furthermore, when 2nd cheque bearing No. 8445635 dated 01.10.2023 of Rs. 50,00,000/- was presented it also got dishonored, whereupon FIR No.84/2013 was registered and lastly when 3rd cheque bearing No. 8445636 of Rs.50,00,000/- was presented, the same was also got dishonoured, whereupon FIR No.63/2014 was registered.

8. Albeit, the cheques have been issued in lieu of a sale transaction of Tractors and machineries sold by the complainant to the petitioner, however, while considering the peculiar circumstances, it shows that prima facie cheques were issued and dishonoured on different dates, therefore, the arguments advanced on behalf of the petitioner has no substance that FIRs merit to be quashed on the basis of double jeopardy. The trials of FIRs ibid do not in any way offend section 403 of Cr.P.C. For ease of reference section 403 of Cr.P.C is reproduced hereunder;

"403. Person once convicted or acquitted not to be tried for same offence. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237.

(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, sub-section (1).

(3) A person convicted of any offence constituted by any act causing consequences which together with such act, constituted a different offence from that of which he was convicted, may by afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

(5) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or section 188 of this Code.

Explanation. The dismissal of a complaint, the stopping of proceedings under section 249 [or the discharge of the accused] is not an acquittal for the purposes of this section."

Henceforth, the impugned order dated 20.07.2022 regarding dismissal of the application filed under section 249-A Cr.P.C suffers from no error of law and facts.

9. As far as Quashment Petition No.564/2022 is concerned, since Constitutional Petitions Nos. 1745 and 1746 of 2022 on the similar point have been held to be devoid of merits, therefore, the instant petition also being meritless for the reasons discussed herein above is unsustainable having no justification and legal backing merits dismissal as well.

10. It is imperative to observe that since the cheques were dishonoured within the span of twelve months, therefore, as contemplated under section 234 Cr.P.C, the Trial Court may on the application of either party direct joinder of charges in a trial, while considering the fact and circumstances of the case. SEE; ['Saira Fatima v. The State' (2024 P Cr. LJ 1289) and 'State v Saeed Khan' (2021 P Cr. LJ 608)].

11. Adverting to the impugned order pertaining to recording statement of the complainant Allah Noor Davi by the Commission at his house, having been assailed in C.Ps. Nos.1374, 1375 and 1376 of 2023, it may be observed that the petitioner has failed to demonstrate and point out any illegality or perversity in the impugned orders, causing prejudice to him, thus, the we believe that the impugned orders suffer from no error of law, therefore, we are not persuaded to meddle with the impugned orders herein regarding recording of statement of the complainant at his residence. As far as the question of breach of peace is concerned, the court has already dispensed with the attendance of the petitioner during his statement.

12. Be that as it may, in order to avoid any untoward incident, it would be appropriate to ensure provision of security during recording the statement of complainant by the concerned SHO, within which the residence of the complainant is situated.

13. For the foregoing reasons, the captioned petitions being shorn of merits are dismissed with no order as to cost.

JK/112/Bal. Petitions dismissed.