ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Misc. Application No. 291 of 2023

Date Order with signature of Judges

For hearing of main case

05.06.2023

Mr. Asadullah H. Memon advocate for the applicants

Mr. Abrar Ali Khichi, Addl.PG for the State

Mr. Liaquat Ali Khan advocate for the complainant

-.-.-.-.-.-.-.-.-.

Irshad Ali Shah, J.- The facts in brief necessary for disposal of instant Criminal Misc. Application are that the private respondent allegedly invested certain amount with the applicants, which they returned to him in shape of cheque, it was bounced when was presented before the concerned Bank for encashment, consequently, he by making an application under Section 22-A/B Cr.P.C sought for direction against the police to record his FIR for the said offence, it was issued by learned XII-Additional Sessions Judge/Ex-Officio Justice of Peace, Karachi East vide order dated 03.05.2023, which is impugned by the applicants before this Court by preferring the instant Criminal Misc. Application.

It is contended by learned counsel for the applicants that entire amount has been returned by the applicants to the private respondent yet he is going to involve them in a false case malafidely on the basis of a cheque, which was kept with him as security. By contending so, he sought for setting aside of the impugned order.

Learned Addl. P.G for the State and learned counsel for the private respondent by supporting the impugned order have sought for dismissal of instant Cr. Misc. Application by contending that the cognizable offence has taken place.

Heard arguments and perused the record.

Apparently, the applicants and private respondent were having a business deal, the dispute between them, if any, arose due to settlement of account. The cheque, which was alleged to have been bounced as per the applicants, was kept by them with the private respondent as a security. If for the sake of arguments, it is believed that the alleged offence has actually taken and for that the FIR of the private respondent was not being recorded by the police, even then he was having an alternate and adequate remedy to exhaust by filing a direct complaint of the incident for the reason that the entire evidence which was going to be collected by the police on lodgment of the FIR is already lying with the private respondent or a civil suit for recovery of his money before the Court having jurisdiction. In these circumstances, learned Ex-officio Justice of Peace ought not to have directed the police to record statement of private respondent for purpose of FIR by way of impugned order, it is set aside.

In case of Rai Ashraf and others vs. Muhammad Saleem Bhatti and others (PLD 2010 S.C 691), it has been held by Apex Court that;

“The learned High Court had erred in law to exercise discretion in favour of the respondent No.1 without realizing that the respondent No.1 had filed application before the Additional Sessions Judge/Ex-Officio Justice of the Peace to restrain the public functionaries not to take action against him in accordance with the LDA Act 1975, Rules and Regulations framed thereunder, therefore, respondent No.1 had filed petition with mala fide intention and this aspect was not considered by the learned High Court in its true perspective.”

In view of above, the instant Criminal Misc. Application is disposed of accordingly.

JUDGE