IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Misc. Application No.S-664 of 2023.

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE

1. For orders on O/objection at flag-A.

2. For hearing of bail application.

Date of hearing 12.09.2024.

Mr. Shabir Ali Bozdar, Advocate for applicant.

Asad Rasool Mahar, Advocate for proposed accused

Mr. Khalil Ahmed Maitlo, DPG for State.

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O R D E R

MEHMOOD A. KHAN, J; Learned counsels for parties were partially heard on 16.08.2024 and their contentions stand recorded already to that extent. Record shows that in the matter applicants have filed application u/s 22-A(6)(1) Cr.P.C, before the learned Additional Sessions Judge-I/Ex-Officio Justice of Peace, Sukkur to which notices were issued for the respondents thereafter the Ex-Officio Justice of Peace, Sukkur was pleased to dismiss the same by way of the impugned order relying upon the procedure in this regard and delay as said to have been caused from the issuance of the cheque to the approach to the Court. Learned counsels for the respective parties have already referred to the details that are bearing from the record wherein it is primarily contended by applicant that the private respondents were their dealers and for settlement of account subject cheques were issued which were dishonored on presentation as such the element of consideration is not in issue here on account of the words used in Section 489-F being loan and liability. The security as such by its simple meaning is found well covered by the word liability as security cannot be imagined otherwise. On the last date of hearing having partially heard the matter following order was passed;

“The gist of arguments of learned counsel for applicant is that the two Cheques one of Rs. 50,00,000/- dated 19.04.2021 bears the transfer stamp of the same date whereas the Cheque of Rs.10,00,000/- dated 01.11.2020 memo of return dated 18.11.2020 was present. It is further being contended that first approach for cognizance was made on 18.02.2023. Learned counsel requires time in order to come prepare as to the limitation being lost for remedity of Civil nature and right still liable to be agitated through the process as said to be present in the matter.

Learned counsel for applicant today has submitted case law of Syed Qamber Ali Shah v. Province of Sindh and others (2024 SCMR 1123) wherein requirement of powers exercise u/s 22-A& B, Cr.P.C has been brought-up. Learned counsel has further contended that delay has properly been explained in his application as such the subject application was not liable to be dismissed on this account.

Learned counsel for respondents, however, contends that memo of only one of the cheques has been brought-up and that no approach has been brought on record whereby the superior police officials have been approached by the applicant.

Learned Deputy Prosecutor General, however, contended that no explanation of the availability of the cheque with the applicant has been questioned on part of the respondents and that the delay may be effecting a party/complainant in civil matter however, same is not a question in criminal proceedings.

Today, I have heard learned counsel for parties and have gone through the record. As the impugned order is limited to the taking of cognizance for directions lodged for proceedings to be initiated I have restrained myself from making any remarks as to the cheques and the memo referred thereto. The only question before this Court is whether the delay is fatal and the procedure available is of mandatory nature or otherwise. The cognizance by in the criminal proceedings are not time limited and only the proceedings thereof are limited in its available in the process of appellant approach or in the case the governing statute provides the same. In the present case the delay may have adverse effect to the proceeding of the matter for its resulting effects but the same does not disentitle the party to approach for a criminal cognizance to be taken. The form of restriction may be by statute or mandatory procedures and not for the Ex-Officio justice of Peace to assume that a party will not be able to prove his case as the process of criminal administration at this preliminary stage does not allow the person to look into the future of the proceedings specially where evidence is yet to be acquired. Accordingly, the application is allowed, the impugned order is set-aside and in case the applicant approaches the concerned Police station, his statement shall be recorded and on a cognizable criminal offence coming-out there from FIR be lodged. In this regard, however, without any tangible material available on record to the I.O, no arrest is to be effected.

With the above observation matter stands disposed of.

J U D G E

Ihsan/PS