h1

2005 YLR 1565

MIAN HUSNAIN AHMAD

V/S

STATION HOUSE OFFICER AND OTHERS

Per Muhammad Akhtar Shabbir, J-

Constitution of Pakistan (1973), Arts. 89 & 199-
R/w S. Penal Code (XLV of 1860) S. 489-F-

The petitioner, through the instant writ petition, seeks issuance of a direction to respondent no. 1 to register a criminal case against respondents 2 and 3.

From the contents of this application, given by the petitioner to the S.H.O, concerned, and the contention raised in the writ petition, it reveals that there is civil dispute between the parties. According to the version of the petitioner, respondents nos. 2 and 3 were the guarantors. If cheque has not been encashed, the remedy available to the petitioner was of filing a civil suit under Order XXXVII, rule 1. C.P.C. in the Court of competent jurisdiction. The petitioner has not been deprived of any property or money by respondents no. 2 and 3.

The other aspect of the case is that respondent no. 3 has filed a civil suit for the cancellation of the said cheque and that fact was not disclosed by the petitioner in his writ petition. The cheque is subject-matter of the civil suit. The civil Court would adjudicate upon the matter and determine the genuineness or ingenuineness of the cheque. Further mens rea and criminal intention is not established from the circumstances of the case. From the above facts no cognizable offence is made out.

This Ordinance was enforced by the President of Pakistan in exercise of the powers conferred on him under Article 89 of the Constitution of Pakistan, which envisaged that the President may, except when the National Assembly is in session, if satisfied that the circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require. Sub-clause (a) of sub-Article (2) of Article 89 further provides that (i) before the National Assembly if it (contain provision dealing with all or any of matters specified in clause (2) of Article 73, and shall stand repealed at the expiration of four months from the promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution (ii) ..The Ordinance will become act if it has been laid before the National Assembly through a Bill and if passed by the National Assembly and signed by the President.

After expiry of period of four months, the Criminal Law Amendment Ordinance LXXV of 2002 has died its natural death. No further Ordinance in continuation of the said Ordinance has been promulgated enforced by the President. After General Election, October, 2002 of the National and Provincial Assemblies and taking of oath by the members of Legislature, the Constitution of the country has been revived.

For the foregoing reasons, this writ petition being misconceived is dismissed. However, the petitioner may avail of alternate remedy available to him under the law. [p.1565, 1566, 1567]A,B,C,D & E

Noor Muammad Chishti for Petitioner.
Date of hearing : 18th June, 2003.

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