IFTIKHAR AHMED and another vs S.H.O.. POLICE STATION KOHSAR, ISLAMABAD

ORDER

This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, read with section 561-A, Cr.P.C. Seeking quashment of F.I.R. No,178 dated 3-8-2000 registered under sections 420, 468 and 471, P.P.C. Against the petitioners with the Police Station Kohsar, Islamabad.

2. The allegations made are that on 12-11-1995, the petitioners went to the City Bank and obtained a loan of Rs,50,00,000 after execution of a mortgage deed of personal property of one of the petitioners as security for the loan and thereafter they executed an agreement. It was alleged by the Complainant that after obtaining the loan, the petitioners paid nine instalments but later ceased to pay any more. On demand, they handed over three cheques to the Bank and these were dishonoured by their bank with the observations that accounts did not have the required money.

3. According to learned counsel for the petitioners, the loan had been obtained at Rawalpindi and the cheques which allegedly bounced also related to a Bank at Rawalpindi but strangely enough the F.I.R. Was lodged by the Islamabad Police under the influence of the complainant.

4. In this connection, the petitioners have attached photo copy of the letter which was sent by the Bank to the S.H.O. Police Station Kohsar. The photo copy also reflects a chit said to have been issued by someone at the Office of the Inspector-General of Police, directing the A.S.I. Of Police Station Kohsar, Islamabad that in case the petitioners failed to pay the amount, the case be registered.

5. It has been said that this F.I.R. Was even otherwise not sustainable in law in view of section 19(4) of the Act XV of the Banking Company (Recovery of Loans, Advances, Credits and Finances) Act of 1997 and the case was, therefore, not cognizable by the police.

6. However, the main case of learned counsel for the petitioners was that this was a civil liability and a criminal action had been initiated with bad intention and the purpose of which was to abuse the process under the criminal law, and therefore, the F.I.R. Deserves to be quashed by this Court by exercising its inherent jurisdiction under section 561-A, Cr.P.C.

7. While further submitting the facts, learned counsel for the petitioners has stated that a suit with the authorized Banking Court had already been instituted by a complainant Bank and which suit was not proceeding and this reflected that the dispute was purely of a civil nature which had to be kept away from the criminal jurisdiction. It was also stated that the cheques under reference were obtained by the Bank undated and the date had been entered subsequently.

8. The learned A.A.-G. Accepts the contentions raised by learned counsel for the petitioners and states that the case was one of a civil nature and did not reflect any criminal liability and consequently, the order of quashment is the answer.

9. Learned counsel for the complainant has admitted that a suit before the Banking Court was pending inter se the Bank and the petitioners.

10. While the High Court considers an application like the present one, the grounds to be kept in view are whether there was a jurisdictional defect, a patent violation of some provisions of law, whether the allegations as contained in the F.I.R. Even if believed would make out no case and the continuant. n of proceedings would amount to sheer abuse of process of Court, whether an endeavour is made to enforce a civil liability through machinery of Criminal Courts. This Court feels that all the grounds are available as far as this case is concerned. A civil liability was being enforced through a criminal action. Whereas appropriately the remedy which is being pursued before a Banking Court was the one more proper.

11. This Court had been since long depreciated such trends. In Ladha Shah v. Zaman Ali AIR 1925 Lahore 289(2), Campbell, J. Had observed that parties should not be encouraged to resort to the Criminal Courts in cases in which the point at issue between them is one which can more appropriately be decided by a Civil Court and that the tendency on the part of litigants to do so should be checked by Criminal Courts who should be on their guard against lending their aid to such procedure.

12. In Mahmood-ul-Hasan v. Imtiaz Khan and another PLD 1963 (W.P.) Lahore 481, Ortcheson, J. Had also depreciated the enforcement of a civil liability through a criminal procedure and had observed that this was a gross abuse of process under the criminal procedure.

13. Reference in this connection may also be made to the case of Miraj Khan v. Gul Ahmad and 3 others 2000 SCM R 122. In this case, the apex Court had observed that when it is felt that the continuance of the proceedings would be a futile exercise, wastage of time and abuse of process and the facts patently speak of that, then to allow the process to continue was its abuse.

14. After hearing both sides, this Court is of the view that this was a case where patently a civil liability was being enforced through the criminal process which on the face of it was not sustainable in law and, therefore, accepts the writ petition, cancels the F.I.R. In question and quashes any proceedings pursuant thereto.