Sunday, 1 December 2013

All offences under 2001 ordinance are bailable

PLJ 2013 Lahore 530 (DB) [Multan Bench Multan] Present: Abdus Sattar Asghar and Shujaat Ali Khan, JJ. FAYSAL BANK--Appellant versus JUSTICE OF PEACE, etc.--Respondents I.C.A. No. 224 of 2013, decided on 8.7.2013. Bank Law-- ----Scope of--Objection in enacting Banking Laws was to provide speedy remedy at one forum to Banks for recovery of their finances and for customers of Banks to approach same Court in case of grievance against Banks. [P. 533] A Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001) ----S. 20(6)--Pakistan Penal Code, (XLV of 1860), S. 489-F--Appeal before two judges of High Court--All offences under Ordinance 2001 shall be bailable, non-cognizable and compoundable where the offence u/S. 489-F of PPC is non-bailable, cognizable and compoundable. [P. 533] B Criminal Procedure Code, 1898 (V of 1898)-- ----S. 154--Power of police officer--Cognizable offence--There is no cavil to proposition that a police officer is empowered and obliged to proceed u/S. 154, Cr.P.C. only where commission of cognizable offence is reported. [P. 533] C Interpretation of Statute-- ----Scope--It is an established principle of interpretation of statute that in case of special law and general law on same subject which if standing alone would include same matter and conflict with special law, it is special law which will prevail since it evinces legislative intent more objectively and specifically then general law. [P. 533] D Role and Function of Ex-officio Justice of Peace-- ----Superior Courts in Pakistan had traveled a long way in developing and interpreting law of procedure role and functions of ex-officio justice of peace in respect of complaints regarding failure of police to register a case. [P. 533] E PLD 2005 Lah. 470, ref. Law Reforms Ordinance, 1972-- ----S. 3--Criminal Procedure Code, (V of 1898)--S. 22-A--Intra Court Appeal--Application before justice of peace for registration of criminal case for bouncing of cheque--Petition was disposed of without awaiting report from SHO--Assailed--Ex-officio Justice of Peace issued a stereo type direction to police for recording statement of appellant against law and facts, without procuring report of SHO, without application of judicious mind and over looking guidance provided by High Court--High Court had rightly set aside the order passed by Ex-officio justice of peace--No reason to review impugned order through I.C.A.--Intra Court Appeal was dismissed. [P. ] F & G Syed Waseem Haider, Advocate for Appellant. Date of hearing: 8.7.2013. Order Abdus Sattar Asghar, J.--This Intra-Court appeal under Section 3 of the Law Reforms Ordinance, 1972 is directed against the order dated 24.6.2013 passed by learned Single Judge in Chambers in Writ Petition No. 889/2012. 2. Succinctly the facts leading to this Intra-Court appeal are that appellant lodged an application under Section 22-A of the Code of Criminal Procedure 1898 before the learned Additional Sessions Judge/ Ex-Officio Justice of the Peace Multan seeking registration of case against Muhammad Javed Khan Respondent No. 3 for bouncing of Cheque No. CA0010310290 dated 30.4.2010 amounting to Rs.20,00,000/- allegedly issued by Respondent No. 3 for repayment of finance advanced by the appellant bank. The learned Additional Sessions Judge/Ex-Officio Justice of the Peace Multan vide order dated 09.12.2011 entertaining the petition under Section 22-A of Code of Criminal Procedure 1898 required the comments of SHO concerned for 19.12.2011. On the said date learned Additional Sessions Judge/Ex-Officio Justice of the Peace Multan without awaiting the report from the SHO disposed of the said petition in the following manner: "Sajid Hussain, the petitioner seeks registration of case against the nominated person in respect of an episode whereby a cheque allegedly issued to him with intention less than fairy, which on presentation was dishonoured. 2. Let the SHO, P.S. concerned record petitioner's statement and proceed in accordance with law. Disposed of accordingly. File to records." 3. Respondent No. 3 being aggrieved challenged the vires of above said order through Writ Petition No. 889-2012 which was allowed by the learned Single Judge in Chambers vide impugned order dated 24.6.2013 in the following manner: "7. Accordingly, this writ petition is allowed and the impugned order, dated 19.12.2011 passed by learned Additional Judge/Ex-Officio Justice of Peace, is hereby set-aside. This order, however, will not be considered a bar in the way of the respondent Bank to plead their case before the appropriate forum under the Financial Institutions (Recovery of finances) Ordinance, 2001." 4. It is argued by learned counsel for the appellant that in the event of dishonouring of the cheque issued towards repayment of finance no doubt appellant bank could file a complaint under Section 20(4) of the Financial Institutional (Recovery of Finance) Ordinance, 2001 but it was not debarred from getting the criminal case registered against the Respondent No. 3 under Section 489-F PPC having a prerogative to get the grievance redressed through speedy remedy of his choice; that learned Single Judge in Chambers was in legal error allowing the writ petition and setting aside the lawful order passed by learned Additional Sessions Judge/Ex-Officio Justice of the Peace Multan. 5. Arguments heard. Record perused. 6. At the outset it may be expedient to reproduce the provisions of Section 20(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and Section 489-F of Pakistan Penal Code, 1860 which read as under:-- "Section 20(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001:--Who ever dishonestly issues a cheque towards repayment of a finance or fulfillment of an obligation which is dishonoured on presentation shall be punishable with imprisonment which may extend to one year or with fine or with both unless he can establish for which the burden of proof shall rest on him that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque. Section 489-F, Pakistan Penal Code 1860:--Whoever dishonestly issues a cheque towards repayment of a loan or fulfillment of an obligation which is dishonoured on presentation, shall be punished with imprisonment which may extend to three years or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque." 7. Comparative appraisal of both the above quoted provisions manifests that only two words have been substituted in Section 489-F PPC. The word `finance' used in Section 20(4) of the Ordinance ibid is substituted with word `loan' and punishment of `one year' is substituted with `three years' however the remaining provisions of both the enactments are the same. Needless to say that object in enacting the Banking Laws was to provide speedy remedy at one forum to the Banks for the recovery of their finances and for the customers of the Banks to approach the same Court in case of grievance against the Banks. Section 22 of the Ordinance ibid provides provision of appeal before two Judges of this Court. It is pertinent to note that sub-section (6) of Section 20 of the Ordinance ibid clearly envisages that all offences under the Ordinance shall be bailable, non-cognizable and compoundable whereas the offence under Section 489-F of Pakistan Penal Code 1860 is non-bailable, cognizable and compoundable. There is no cavil to the proposition that a police officer is empowered and obliged to proceed under Section 154 of the Code of Criminal Procedure 1898 only where the commission of a cognizable offence is reported. It is an established principle of interpretation of statutes that in case of a special law and a general law on the same subject which if standing alone would include the same matter and conflict with the special law, it is the special law which will prevail since it evinces the legislative intent more objectively and specifically then the general law. The intent to legislate Section 20(4) of the Ordinance ibid and Section 489-F PPC being altogether different should not be intermingled. In view of the above legal position the arguments of learned counsel for appellant that Bank in its own prerogative was not debarred from getting criminal case registered under Section 489-F PPC to redress its grievance through speedy remedy of his choice is devoid of any force and thus repelled. 8. It is pertinent to mention that the Superior Courts in Pakistan have traveled a long way in developing and interpreting the law of procedure viz-a-viz role and functions of the Ex-Officio Justice of Peace in respect of the complaints regarding failure of the police to register a case. In this regard a well-deliberated Full Bench Judgment of this Court is the case of Khizar Hayat and others vs. Inspector General of Police, Punjab, Lahore and others (PLD 2005 Lahore 470). An extract from the conclusions of the above said judgment for guidance of the Ex-Officio Justice of the Peace is reproduced hereinafter for ready reference:-- "35(ix) Complaints regarding failure of the police to register a criminal case: The officer in charge of the relevant Police Station may be under a statutory obligation to register an F.I.R. whenever information disclosing commission of a cognizable offence is provided to him but the provisions of Section 22-A(6), Cr.P.C. do not make it obligatory for an ex-officio Justice of the Peace to necessarily or blindfoldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard. An ex-officio Justice of the Peace should exercise caution and restraint in this regard and he may call for comments of the officer in charge of the relevant Police Station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police have not registered a criminal case in respect of the complainant's allegations. If the comments furnished by the officer in charge of the relevant Police Station disclose no justifiable reason for not registering a criminal case on the basis of the information supplied by the complaining person then an ex-officio Justice of the Peace would be justified in issuing a direction that a criminal case be registered and investigated. It is not obligatory for the officer in charge of a Police Station or for an ex-officio Justice of the Peace to afford an opportunity of hearing to the accused party before registration of a criminal case or before issuing a direction in that regard. In an appropriate case, depending upon the circumstances thereof, an ex-officio Justice of the Peace may refuse to issue a direction regarding registration of a criminal case and may dismiss the complaint under Section 22-A(6), Cr.P.C. reminding the complaining person of his alternate statutory remedies under Sections 156(3) and 190, Cr.P.C. The impression entertained by a large section of the legal community in our country that in case of filing of a private complaint the accused person cannot be arrested and recovery cannot be affected from him is nothing but erroneous and fallacious." 9. In this case it is evident on the record that the learned Additional Sessions Judge/Ex-Officio Justice of the Peace issued a stereotype direction to the police for recording statement of the appellant against law and facts, without procuring the report of the SHO, without application of judicious mind and over looking the guidance provided by this Court in Khizar Hayat and others' case (supra). In the attending circumstances learned Single Judge in Chambers has rightly set aside the order passed by learned Additional Sessions Judge/Ex-Officio Justice of the Peace Multan. We do not find any cogent reason to review the impugned order dated 24.6.2013 through this I.C.A. under Section 3 of the Law Reforms Ordinance. 10. For the above reasons, this I.C.A. having no merits is dismissed in limine. (R.A.) I.C.A. dismissed

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