Crl. Misc. No.372-M/10.

Hina Javaid

05.04.2013.

State etc.

Mr. Abrar Ahmad, Advocate for the petitioner.

Mr. Aish Bahadar Rana, Advocate for respondent No.3.
Through this petition, the petitioner challenges
an order dated 17.07.2009 passed by the learned
Additional Sessions Judge, Okara. Through the impugned
order, a Crl. Revision filed by respondent No.3 was
partially allowed and it was ordered that the private
criminal complaint to the extent of the petitioner shall
remain pending before the Area Magistrate, who shall
adopt requisite measures in accordance with law to procure
the attendance of the petitioner to face trial. It may be
pointed out that the revision petition to the extent of the
other accused/respondents shall dismissed and the order
dated 12.11.2008 passed by the learned Magistrate 1 st
Class, Okara was upheld.
2.
was

The brief facts of the case are that the petitioner

married

to

respondent

No.3

on

08.02.2004.

Subsequently, she went to England with her father. The

petitioner had a PLS account No.31425-1 with HBL
Mandi Road Branch, Okara. Before proceeding to

Crl. Misc.No.372-M of 2010.

England, the petitioner handed over her cheque book to

respondent No.3 for closing her account. The account was
accordingly closed on 31.05.2004. It appears that the
relationship between the parties did not remain cordial.
Therefore, the petitioner left the house of respondent No.3
and returned to the house of her parents. On 28.01.2006,
the petitioner filed a suit for dissolution of the marriage on
the basis of Khula. Respondent No.3 was served and was
represented before the learned Judge Family Court.
However, vide order dated 08.05.2006, the suit for
dissolution of marriage was decreed.
3.

It is alleged that the cheque book of the

petitioner, which was in possession of respondent No.3

was used by him to prepare a forged cheque for a sum of
Rs.500,000/- dated 20.10.2007. The same was presented to
the bank on 25.10.2007, but the same was dishonoured.
The reason given on the dishonour slip dated 25th October,
2007 was, insufficient funds. It appears that the cheque
was again presented the next day i.e. 26th October, 2007.
This time, it was returned with the remarks, account
closed.
4.

On 27.10.2007, respondent No.3 lodged FIR

No763/07 u/s 489-F, PPC, P.S. A-Division, Okara against

the petitioner, her father and three of her brothers. The

Crl. Misc.No.372-M of 2010.

investigating officer summoned the parties, investigated

the matter and came to the conclusion that the matter
relates to a civil dispute between the parties, respondent
No.3 had forged signatures of the petitioner, which have
been confirmed by the concerned bank. He prepared a
cancellation report and sent it to S.P. (Investigation),
Okara, who referred the same to DPO, Okara for
cancellation of the FIR.
5.

Respondent No.3 was dis-satisfied with the

investigation, therefore, he filed a private complaint

No.219/08 before the Area Magistrate, Okara against the
petitioner and 04 others. After recording cursory evidence
of respondent No.3 and two of his witnesses, namely,
Tariq Aziz and Irfan Ali, the learned Area Magistrate came
to the conclusion that the evidence of the complaint was
not credible. He, therefore, proceeded to dismiss the
private complaint. Respondent No.3 challenged the said
order by way of Crl. Revision. Vide order dated
17.07.2009, a learned Addl. Sessions Judge, Okara, who
heard the revision, up-held the order of the Magistrate to
the extent of the father and brothers of the petitioner.
However, he set aside the order to the extent of the
petitioner with a direction that the criminal complaint shall
remain pending before the Area Magistrate, who shall

Crl. Misc.No.372-M of 2010.

adopt measures in accordance with law to procure her

attendance to face trial. The petitioner has challenged the
said order through this petition.
6.

The learned counsel for the petitioner submits

that the complaint was patently malafide and filed to

harass and black-male the petitioner. He submits that the
cheque book of the petitioner was in custody of respondent
No.3, who had forged her signatures on the cheque book in
question and submitted the same for encashment against an
account, which had already been closed. He further
submits that there was no credible evidence available on
record indicating commission of any offence by the
petitioner. He maintains that a perusal of the statement of
respondent No.3 as well as his witnesses shows that the
stance taken by them was that the petitioner had allegedly
stolen cash and gold ornaments worth Rs.500,000/- from
the house of respondent No.3. Upon being confronted, the
petitioner and the other members of her family agreed to
return the stolen property, subject to the condition that
respondent No.3 would divorce her. Further, respondent
No.3 divorced her in the presence of witnesses on
20.10.2007 and simultaneously of her own free will
petitioner issued a cheque of Rs.500,000/- in favour of
respondent No.3. The learned counsel points out that the

Crl. Misc.No.372-M of 2010.

story is belied by the fact that the marriage between the

parties also stood dissolved by virtue of a decree for
dissolution of marriage passed by a Family Court at
Lahore on 08.05.2006 i.e. more than 1- year before the
cheque in question was allegedly issued. Therefore, story
given in the private complaint was patently false and
incorrect and was rightly disbelieved by the police as well
as by the Area Magistrate. He further points out that the
signatures of the petitioner in cheque were found to be
forged not only during investigation, but also by the
concerned bank, who issued certificate in this regard. He
finally points out that the malafides of respondent No.3 is
evident from the fact that FIR No.763/07 was lodged on
27.10.2007, which was one day before the petitioner was
to contract a second marriage, which was solemnized on
28.10.2007. He finally argues that the learned Addl.
Sessions Judge did not take due notice of the aforesaid
facts and recorded findings on the basis of conjucture and
assumptions, which were not supported by the record.
Consequently, order of the revisional court is not
sustainable.
7.

The learned counsel for respondent No.3 on the

other hand has supported the order of the revisional court.

He submits that the question whether or not the signatures

Crl. Misc.No.372-M of 2010.

of the petitioner have been forged, is a question requiring

recording of evidence. Therefore, the Magistrate erred in
law in dismissing the complaint after recording the cursory
evidence. He submits that the evidence produced by
respondent No.3 was credible and respondent No.3 had a
right to get the matter adjudicated through a trial.
8.

I have heard the learned counsel for the parties

and gone through the record.

9.

The

fundamental

question

requiring

determination by this Court is whether the Area Magistrate

was justified in disbelieving the cursory evidence
produced by the complaint and recording a finding that it
was not credible. On hearing the arguments of the parties
and going through the record, I found that the answer to
the afore-noted question is to be in the affirmative for the
following reasons:i.

Admittedly, account No.31425-1 with

HBL Mandi Road Branch, Okara, which was

opened in the name of the petitioner was closed
on 31st May, 2009 with zero balance, as is
evident from a copy of the account statement,
which was furnished by the concerned bank.
Therefore, the version of the petitioner that her
cheque book remained with respondent No.3, her
ex-husband, who forged a cheque to harass and
black-male her, carries weight and is supported

Crl. Misc.No.372-M of 2010.

by the fact that the investigating officer as well

as the bank confirmed that the signatures on the
cheque were forged and did not match her
specimen signatures available with the bank. The
disputed cheque is also available on the record of
this petition. In exercise of my powers under
Article 84 of the Qanoon-e-Shahadat Order, I
have compared the signatures on the cheque
appearing at page-37 of the file with the
signatures of the petitioner in order-sheet of the
learned Family Judge, Lahore, appearing in
page-13 of the file. The said comparison clearly
indicates that the signatures of the petitioner on
the cheque match her signatures in the ordersheet, which were made before the Court on the
date of hearing i.e. 08.05.2006.
ii.

There are material discrepancies between

the version given by the complainant/respondent

No.3 in the FIR and the complaint filed by
respondent No.3. While in the FIR it was stated
that the petitioner had stolen cash and jewelry
worth Rs.500,000/- from the house of respondent
No.3, on discovering of which respondent No.3
along with 04 other constituted a panchayat and
went to the petitioners house, claimed return of
the stolen goods, whereupon on 20.10.2007, the
petitioner issued a cheque for Rs.500,000/-,
which has been dishonoured. On the contrary, in
the complaint as well as the cursory evidence, a
different version was given to the fact that the
petitioner was still in the house of the
complainant/respondent

No.3,

when

she

Crl. Misc.No.372-M of 2010.

allegedly stole 20 tolas of gold and Rs.10,000/in cash. When she was confronted with the same,
she denied the allegation, however, when other
members of the family also confirmed the theft,
the petitioner asked for a divorce. There-after, a
meeting of certain members of the family of the
petitioner as well as that of the respondent was
called, in which it was agreed that respondent
No.3 would divorce the petitioner and the
petitioner would pay a sum of Rs.500,000/- to
respondent No.3. As a result of the said meeting,
the petitioner allegedly issued the disputed
cheque of Rs.500,000/- in favour of respondent
No.3 and the other members of her family stood
guarantors that the said amount would be paid.
Respondent No.3 further claimed that on the said
basis, he appeared before the Judge Family Court
and made a statement that he had divorced the
petitioner.
iii.

The above version is falsified by the

record itself. It is clear and obvious from the

record that the cheque in question bears the date
20.10.2007, while the Judge Family Court issued
a

decree

of

dissolution

of

marriage

on

08.05.2006 i.e. more than 1- year before the

cheque in question had been issued. Therefore,
on the face of it, the version given in the
complaint is false and fabricated. The cursory
evidence produced by respondent No.3 and the
statement of Tariq Azeem and Irfan Ali made
before the Area Magistrate, also given the
version that respondent No.3 divorced the

Crl. Misc.No.372-M of 2010.

petitioner in the presence of the meeting that had

assembled on 20.10.2007, when the cheque in
question was issued in lieu of respondent No.3
divorcing the petitioner. The said assertion is
falsified by the record in view of the judgment
dated 08.05.2006, whereby the learned Judge
Family Court, Lahore dissolved the marriage on
the basis of Khula vide his order dated
08.05.2006. Therefore, there was no occasion for
the petitioner to issue a cheque 1 year later in
lieu of divorce being pronounced by respondent
No.3 on her in view of the fact that the marriage
already stood dissolved.
iv.

On perusal of the order-sheet of the

learned Trial Court, which has also been placed

on record, clearly indicates that respondent No.3
never made any statement before the said court
as alleged by him. Although, he was represented
before the Family Court by a counsel, the
marriage was dissolved on the basis of a
statement made by the petitioner that she was
unwilling to reconcile and wanted dissolution of
marriage on the ground of Khula. On the basis of
the said statement an order was recorded to the
effect that in terms of the statement of the
respondent efforts for reconciliation had failed,
therefore, the suit was decreed. Respondent No.3
was not only aware of the said fact, but misstated
the same before the Area Magistrate in order to
make out a case on the basis of false and
incorrect facts.

Crl. Misc.No.372-M of 2010.

10

v.

It is also significant to note that respondent

No.3 has also filed a suit under Order XXXVII

Rule 1 & 2, CPC for recovery of the afore-noted
amount of Rs.500,000/-, a copy of the suit has
been attached with this petition. A perusal of the
complaint indicates that a totally different
version insofar as it has been alleged in
paragraph-4 of the complaint that the petitioner
has stolen 20 tolas gold and Rs.10,000/-, on
discovery of which she demanded divorce from
respondent No.3. Consequently, a meeting of
both families was called and it was agreed that
the

petitioner

would

return

Rs.500,000/-,

provided respondent No.3 would divorce her.

Consequently, the petitioner issued a cheque of
Rs.500,000/- and believing that the cheque
would be encashed, respondent No.3 made a
statement before the learned Judge Family Court,
Lahore and thereby divorced her.
vi.

As discussed above, the said statement is

factually incorrect and not only contrary to the

statement made by respondent No.3 and his
witnesses before the Area Magistrate, but is also
contradicted by respondent No.3, which shows
that the cheque in question was issued on
20.10.2007, while marriage stood dissolved by
virtue of the judgment of the learned Family
Court on 08.05.2006.
vii.

I find substance in the arguments of the

learned counsel for the petitioner that the

complaint has been filed to victimize and harass
the petitioner in view of the fact that the cheque

Crl. Misc.No.372-M of 2010.

11

was dated 20.10.2007, which was presented

twice on 25.10.2007 and 26.10.2007 and the FIR
was lodged on 27.10.2007, knowing that the
petitioner was getting re-married on 28.10.2007.
This sequence of facts clearly points towards the
intent to harass, intimidate and victimize the
petitioner. Therefore, in my opinion, the learned
Area Magistrate had given reason and lawful
justification to record the finding that the cursory
evidence of the complainant was not credible.
viii. I find that continuance of proceedings
before the Area Magistrate would be a futile
exercise, wastage of time and gross abuse of the
process of the Court. On the basis of admitted
facts, which are duly supported by the record and
convinced that no offence is made out and it
would amount to abuse of the process of law to
allow the prosecution to continue with the trial. I
am fortified in coming to the above conclusions
by MIRAJ KHAN v. GUL AHMED and 3 others
(2000 SCMR 122), MAQBOOL REHMAN v.
THE STATE and others (2002 SCMR 1076) &
MUHAMMAD FIAZ KHAN v. AJMER KHAN
and another (2010 SCMR 105). In Muhammad
Fiaz KhanS case ibid, Ch. Ijaz Ahmed, J. as he
the then was, writing before the Court held as
follows:It is settled principle of law that
appreciation of evidence at preliminary inquiry
with the yardstick of trial Court is not the
purpose under section 202. The trial Court has
to believe only to see a prima facie case is to be

Crl. Misc.No.372-M of 2010.

12

made out or not that is why full dress rehearsal

of trial is not possible. This is the general
principle with regard to examining the evidence
on record before issuing process under section
204, Cr.P.C. Section 202 falls under Chapter
XVI of Criminal Procedure Code. Therefore, the
scope of this section is to separate unfounded
from substantial cases at the outset at the initial
stages that is why command of the section bound
the Magistrate who has to satisfy himself before
issuing of process to the respondent/accused. The
object and scope of this section are two-fold
which are as follows:
(i).

to allow free and fair opportunity to

complainant to produce some evidence to

make out grounds for issuing processes
against accused. It is the duty of
Magistrate

to

scrutinize

contents

of

complaint, nature of allegations made

therein, material in support of accusation.
(ii).

Object intended to be achieved,

possibility

of

victimization

and

harassment, if any, to ensure himself that

no innocent person against whom all
allegations are leveled should suffer
ordeal of protracted, time consuming and
cumbersome process of law.
The same view was given in Muhammad
Nawazs case (2000 SCMR 1904).

Crl. Misc.No.372-M of 2010.

10.

13

For the reasons recorded above, this petition is

allowed, the impugned order dated 17.07.2009 passed by

the learned Addl. Sessions Judge, Okara is set-aside. In
result, proceedings pending before respondent No.4 Area
Magistrate, Okara shall stand quashed.

(IJAZ UL AHSAN)
JUDGE
Announced in open Court on 09.04.2013.

JUDGE
Approved for reporting.
*Mumtaz*