ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Misc. Application No.S-643 of 2021

DATE ORDER WITH SIGNATURE OF JUDGE

27.09.2021

1.For orders on M.A. No. 5297/2021 (Urgency Application)

2. For orders on office objection at flag-A.

3.For orders on M.A. No. 5298/2021 (Exemption Application)

4.For hearing of main case.

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Mr. Muhammad Rehan Khan Durrani, advocate for applicant.

1. Urgency Application is granted.

2. Office objection are deferred.

3. Exemption application is granted subject to all just exceptions.

4. The applicant filed Cr. Misc. Application No. 1953 of 2021, under section 22-A(6)(i) &22-B, Cr.P.C. (Re: Muhammad Aurangzeb vs. Senior Superintendent, Sukkur & 2 others)before the learned Additional Sessions Judge-V/Ex-Officio Justice of Peace, Sukkur seeking directions to S.H.O., Police Station“A” Section, Sukkur inter alia to record his statement as per law and if the cognizable offence is made out from his statement as well as documentary evidence, registered his report in 154, Cr.P.C. book as per law.

It wasalleged by the applicant in Cr. Misc. Application No. 1953 of 2021 that a property bearing C.S. No. 516-D, admeasuring 7000 Sq.ft. situated at Barrage Road, Sukkur was inherits by his father, uncles and aunties and after death of his father, one Abdul Razzaq Davi dishonestly deprived him and others from their legal shares in the said property by getting his name entered in the record of rights and, thereafter, Abdul Razzaq Devi mixed up with his (complainant’s) elder brother, namely, Sultan Mehmood and by misrepresenting as owner of the said property entered into an agreement of sale with Inayatulah Davi,who started constructions of a commercial plaza with name and style as “Tahiri City Tower” after demolishing the old construction of the said property along with builder Farasat Hussain Jaffery.It was further alleged that the applicant moved a complaintto the respondent No.1 and also issued a legal notice through his counsel to Abdul Razzaq Davi, on that Haji Abdul Kareem Davi,the sleeping partner of Inayatullah, intervened in the matter and entered into an agreement/Iqrarnama on behalf of accused Abdul Razzaq Davi, Inayatullah and Sultan Mehmood with the applicant,on 14.07.2020, for purchasing his share in the said property for consideration of Rs.1,50,00,000/-, out of which he paid Rs.50,00,000/- as earnest money and for the remaining amount he issued ten post-dated cheques to the applicant in terms of clause No.1 of the said agreement, which on presentation dishonored for want of sufficient fund, as per memos issued by the Bank. It was case of the applicant that the respondent No.3 failed to take any action, he move the aforesaid Cr. Misc. Application. The said Cr. Misc. Application was heard and dismissed by the learned Additional Sessions Judge-V/Ex-Officio Justice of Peace, Sukkur vide impugned order.

I have heard the learned counsel for the applicant and perused the material available on record.

Thelearned Ex-Officio Justice of Peace dismissed the Cr. Misc. Application filed by the applicant observing as under:

4. ….. The record further shows that the cheques were issued by the cheques holders on “Self” and not in the name of applicant. The record also shows that the cheques holders not issued the cheques on malafide or ulterior motives as there was distribution between applicant and proposed accused No.4 and such distribution between applicant and proposed accused No.4 and such distribution was made by the proposed accused Abdul Kareem, who has given the cheques to the applicant as security and cheques were not issued in the name of applicant as the word “self” is written over the cheques, therefore, there is no malafide or ulterior motives on the part of issuer of cheques. The contents of above application also show that during the availability of cheques with the applicant, he has also obtained some amount from the respondents. It is settled law as provided under section 489-F PPC that dishonest issuance of cheques did not attract the offence in each and every case where cheque was dishonored. The record shows that the proposed accused did not issue the cheques with dishonest intention to the applicant and there is civil dispute over the property in between the applicant and proposed accused persons.

It may be observe that bare reading of section 489-F, PPC indicates that offence has been made punishable on issuance of a cheques dishonestly towards payment of a loan or fulfillment of an obligation which is dishonor on presentation. In the instant matter it is an admitted position that the allegedcheques were issued by the cheque holders on “self” and not in name of the applicant. It is also an admitted position that the alleged cheques were neither issued towards payment of a loan or fulfillment of an obligationby the issuer/Haji Abdul Kareem Davi but under an agreement/Iqrarnama which contemplates that in case the cheques are of dishonored, the applicant can demand his share and he can get the construction work stopped hence, the same carries a civil dispute between the applicant and proposed accsued person.

For the foregoing facts and reasons, there appears no illegality or irregularity in the impugned order requiring any interference of this Court under its inherent powers under Section 561-A, Cr.P.C. Hence, this Crl. Misc. Application is dismissed in limine accordingly.

JUDGE