Quashment of FIR for offence under section 489-F PPC

Quashment of FIR for offence under section 489-F PPC Case Laws Constitutional Law Criminal Law Knowledge - Constitutional Law Knowledge - Criminal Law Lahore High Court Litigation & Arbitration Quashment Solutions - Constitutional Law Solutions - Criminal Law Mr. Justice Abdul Rahman Aurangzeb in his judgment has decided the issue regarding quashment of FIR for offence under section 489-F PPC in Writ Petition No. 10839 of 2017.

1. The petitioner has filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan read with Section 561-A Cr.P.C. for the quashment of FIR No.314-2017 dated 20.05.2017 registered under Section 489-F PPC at P.S. City Mian Chanun, District Khanewal.

2. The brief facts of the instant case are that respondent No.2 (complainant) purchased a land measuring 40-kanals from the petitioner vide agreement to sell dated 17.12.2015 for a consideration of Rs.50,00,000/- and paid Rs.10,00,000/- as earnest money and the remaining amount of Rs.40,00,000/- was settled to be paid after the completion of transaction/execution of said agreement and fixed date as 15.07.2016. Subsequently on 10.09.2016 agreement was renewed and total land was settled to be purchased by respondent No.2 as 80-kanals for total consideration of Rs.1,00,00,000/- and Rs.55,00,000/- were paid as advance. On demand of respondent No.2, petitioner issued the cheque in dispute of earnest money on 10.12.2016, which after dishonouring from the concerned bank, resulting into lodging of FIR.

3. The learned counsel for the petitioner has contended that the cheque in-question was given to respondent-complainant as guarantee; that respondent No.2 has failed to comply with the terms and conditions of the agreement to sell, which deemed to be cancelled and the petitioner when demanded the said cheque, the respondent-complainant instead of returning the said cheque, got dishonoured the same from concerned bank and lodged the instant FIR with malafide intention and mis-use the guarantee cheque; that the allegation leveled in the FIR against the petitioner constitutes a civil liability for which he should avail alternate remedy before the learned Civil Court. Hence, the impugned FIR is liable to be quashed.

4. Arguments heard and perused the record annexed with this writ petition. There is no denial for the issuance of cheque in dispute. Admittedly, agreement to sell regarding the purchase of land was executed between the parties and the petitioner issued cheque in-question in favour of respondent-complainant, but the same could not be encashed. It is the duty of the petitioner to discharge his liability regarding the payment of agreement to sell. If any violation committed by either party, it could not be ascertained without investigation. The claim of the complainant is that instant FIR is a conclusive proof of default of the petitioner. On the other hand, the claim of the petitioner regarding the nature and transaction of cheque requires proper appreciation of version through evidence.

5. The practice of quashing the FIR by this Court in the exercise of its constitutional jurisdiction is not approved by the Hon’ble Supreme Court of Pakistan in case reported as “Col. Shah Sadiq. Vs. Muhammad Ashiq & others” (2006 S.C.M.R. 276), it is held as under:

“High Court would err in law to short circuit the normal procedure of law as provided under Criminal Procedure Code, 1898– Party seeking the quashing of FIR had alternative remedy to raise objection at the time of framing the charge against them by the trial Court or at the time of final disposal of the trial after recording the evidence– said party had more than one alternative remedies before the trial Court under Sections 265-K & 249-A Cr.P.C. or to approach the concerned Magistrate for the cancellation of case under the provision of Cr.P.C.–Alternative remedies available to the party enlisted”.

The above context reveals that the truthfulness or falsehood of allegation contained in an FIR or the cross-version can only be ascertained during the course of investigation or by a Court of competent jurisdiction. In the case “Ajmeel Khan. Vs. Abdur Rahim and others” (PLD 2009 S.C. 102), it has been held as under:

“Once FIR is registered, the superior Courts having constitutional, supervisory and inherent jurisdiction had consistently refrained from directly interfering with police investigation in criminal case as the Court should not exercise its control over the investigation, which may be prejudicial to the accused as well as detrimental to the fairness of proceedings, apart from being without jurisdiction.”

“where it has also been held that FIR can be quashed by the High Court in its constitutional jurisdiction when its registration appears to be misuse of process of law or without any legal justification.”

The police have statutory duty under Section 154 Cr.P.C. and statutory right under Section 156 Cr.P.C. to investigate a cognizable offence, whenever a report is made to it disclosing the commission of cognizable offence.

6. The conduct and manner of investigation normally is not to be scrutinized under the constitutional jurisdiction which may amount to interference in police investigation as the same cannot be substituted by the Court. I am also fortified by a judgment reported in case “Muhammad Mansha. Vs. Station House Officer, P.S. City, Chiniot, etc.” (PLD 2006 S.C. 598), wherein it has been held that resort to the provisions of Article 199 of the Constitution seeking the quashment of a criminal case was an extraordinary remedy, which could be invoked only in exceptional circumstances and the said provisions could never be exploited as a substitute for the prescribed trial or to decide the question of guilt or innocence of an accused person on the basis of material which is not admissible in terms of Qanoon-e-Shahadat Order, 1984.

7. Reverting to the case in hand, contents of FIR and writ petition are put in juxta position then it brings the case of the petitioner in the area of disputed question of fact, which cannot be resolved in the constitutional jurisdiction of this Court. The matter requires recording of evidence by the learned trial Court. No ground has been made out by learned counsel for the petitioner falling within the realm of parameters of quashing the FIR. Moreover, after perusing the contents of FIR, I do not find that offence as narrated in the FIR is not made out. It is settled principle of law that the prosecution case cannot be quashed at the initial stage, which is the jurisdictional parameters of the trial Court to decide the guilt or otherwise of the petitioner after sifting and evaluating the prosecution evidence. After the submission of report under Section 173 Cr.P.C, an alternate remedy is also available to the petitioner before the trial Court.

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