2010 P Cr L J 805

[Karachi]

Before Zahid Hamid, J

AZEEM-USH-SHAN-E-HAIDER and 3 others---Applicants

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 57 and M.A. No. 1117 of 2010, decided on 15th March, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. S61-A & 249-A---Penal Code (XLV of 1860), Ss.448/457/149/427/337-A(i)---House-

trespass---Inherent powers---Scope---Application under S.249-A, Cr.P.C. was dismissed by
the Trial Court and revision filed against order of the Trial Court was also dismissed---
Though consent was given verbally by the APG for grant of application under S.249-A,
Cr.P.C., but the Trial Court ignored such concession legally due and extended---With
consent of the counsel of the parties, High Court ordered that no private prosecutor would
conduct the proceedings on behalf of he complainant; but he could only assist the
prosecution in presence of DDA---Trial Court was directed to conclude the trial within
specified period.

Faqir Muhammad and others v. Ch. Ali Muhammad and others 1992 PCr.LJ 1085; Sh.
Muhammad Shafique and others v. Abdul Hamid and another 1992 PCr.LJ 229;
Muhammad Ali v. Assistant Commissioner 1987 SCMR 795; 2004 PCr.LJ 1746; AIR 1959
(sic), 447, 1992 SCMR 1436 and PLD 1951 Sindh 29 ref.

Ashraf Hussain Rizvi for Applicant.

Muhammad Iqbal Awan, A.P.G. for the State.

ORDER

ZAHID HAMID, J.---By this order M.A. No. 117/2010 which has been filed for
suspension of proceedings in Case No.232 of 2006 shall stand disposed of along with the
main Criminal Miscellaneous Application under section 561-A, Cr.P.C.

The grievance of the applicant is that after losing a Civil Suit No.872/95 for specific
performance in respect of immovable property the defendant has been implicated in a
criminal case arising out of more or less the same cause of action except that now 8 to 9
fictitious persons have also been joined and roped in abuse of the process of Court.
Learned counsel for the applicant argued that despite the fact the civil suit filed by the
complainant Inam Fazal, for Specific Performance in respect of the subject property was
dismissed under Order XVII, Rule 3, C.P.C. and the appeal yet the assailed criminal
proceedings under section 448, P.P.C. were filed much later.

Heard learned counsel for the parties. Learned counsel for the applicant submits that an
F.I.R. No.568 of 2006 was lodged on 30th July, 2006 against the applicants under sections
448/457/149/427 and 337-A(i), P.P.C. He further argued that in the F.I.R. it has been
falsely stated that the said suit was pending though it had already been dismissed. Learned
counsel states that this is flagrant abuse of process of the Court and is hit by the principle
akin to autre fois acquit. He has vehemently objected that on every date of hearing before
the learned lower Court a private prosecutor appears in place of the State counsel and he
has assumed the latter's role and has entirely taken over the case of prosecution and if it
were so desired a private complaint should have been filed instead. Learned counsel
submits that there is no single independent witness and all the so-called witnesses are close
relatives, whereas 8 to 9 persons have been roped along with the applicant though they are
non-existent in order to lend credibility to false case. Learned counsel has relied upon 1992
PCr.LJ 1085 (Faqir Muhammad and others v. Ch. Ali Muhammad and others), 1992 PCr.LJ
229, (Sh. Muhammad Shafique and others v. Abdul Hamid and another, 1987 SCMR 795,
(Muhammad Ali v. Assistant Commissioner), 2004 PCr.LJ 1746, AIR 1959 447 (sic), 1992
SCMR 1436 and PLD 1951 Sindh 29, to support his contentions.

Though I am persuaded by the contentions of the learned counsel for the applicant yet the
fact remains that an application under section 249-A, Cr.P.C. was dismissed by the learned
trial Court and the revision filed later before the learned District and Sessions Judge (East)
too has been dismissed on 31-8-2009. Learned counsel for the applicant states that though
consent was given verbally by the learned APG for grant of application under section 249-
A, Cr.P.C. yet the learned trial Court ignored such concession legally due and extended.
Indeed if it is so the learned Court below shall try its best to remain mindful of what
transpires in the Court.

Be that as it may, with the consent of the learned counsel, it is ordered that no private
prosecutor shall conduct the proceedings on behalf of the complainant but he could only
assist the prosecution in presence of the learned DDA. Learned trial Court under the
circumstances is directed to conclude the trial within two months after receipt of this order
and to report compliance.

Accordingly the above Criminal Miscellaneous Application stands disposed of in the terms
stated above.

H.B.T./A-23/K Order accordingly.