1. ' GHULAM DASTAGIR A. SHAHANI, J.---The Applicant Nawab Ferozuddin through present Criminal Miscellaneous Application has only prayed for setting aside of the order, dated 5-1-2007 passed by VIII-Civil Judge/Judicial Magistrate, Karachi South, whereby, he disposed of F.I.R. No,494 of 2005, Police Station Preedy under sections 392/109/34, P.P.C. In A-class, on the request of Investigation Officer. Hence this Criminal Miscellaneous Application.
2. ' Facts of the case in hand contain complicated history. The incident, which rises the start of present proceedings took place on 16-7-2002 at about 12-30 p.m., when applicant received cash of an amount of Rs,100,000 from Bank Al-Habib, M.A. Jinnah Road Branch, Karachi, and left the bank on his motorcycle, while delivering the cash to his partner Shoaib Bhai and went towards Jama Cloth Market. When they reached at Eidgah signal suddenly two boys on Yamaha motorcycle came and on gun point asked him to hdndover the money which he got from the Bank. The applicant given the money to them and accused went away on their motorcycle. According to applicant, he went to Eidgah Police Station and gave an application for registration of F.I.R., thereafter, the applicant returned back to Bank Al-Habib and asked the staff for showing him the video. However, he was told to go to head office of Bank Al-Habib, where he met with one Bukhari, Masood and Jehangir and also watched the required video. The applicant while watching the said video, identified one of the accused. However, after two days when applicant again when to said Bank, he found both the accused persons sitting in the office of Respondent No,4 (Manager Fernandus). Applicant informed the Bank Manager (Raja Jani) that both the boys sitting in the office of the Respondent No,4 are same who robbed him. Respondent No,4 provided an opportunity to both the accused persons to left his office and assured the applicant that robbed money would be returned back to him and advised him not to lodge F. I . R.
3. ' He further alleged that he requested the higher officer, one Jehangir advised him to make an application to one Abbas Habib, who told him that his money would be returned and kept the applicant on hopes and finally applicant approached to a Eidgah Police Station but police did not register his F.I.R.
4. 'However, after lapse of about 3 years, he approached to the learned District and Sessions Judge Karachi South through a Criminal Miscellaneous Application No, 439/2005 for registration of his F.I.R., who passed an order for registration of F.I.R. If cognizable offence is made out. Upon such order F.I.R. No,494 of 2005 Police Station Preedy under sections 392/109/34, P.P.C. Was registered against Bank Manger Mehboob Raja Jani, General Manager Fernandus, Director Abbas D. Habib and two unknown persons.
5. ' However, the R & PS was sent to learned Sessions Judge, Karachi (South) under letter, dated 27th February, 2005 and said case was assigned to the learned VIth Additional Sessions Judge, Karachi (South), where counsel of the applicant insisted the Court that I.O. Has submitted the report with concerned Judicial Magistrate of A-Class, while Magistrate is not passing any order on it. As such learned VI-Additional Session Judge, directed the applicant and I.O. (both) to appear before the concerned Magistrate on 22-5-2006, whereas, on 5-1-2007, the respondent No,2 disposed of the F.I.R. Of the applicant under A-Class (un-traced). However, before passing of the aforesaid order, applicant filed a complaint under section 200, Cr.P.C. Stating the same facts, as stated by him in his F.I.R. Against accused persons, before the respondent No,2, who forwarded his complaint to the learned Sessions Judge, vide order, dated 23-2-2006. Such complaint bearing No, 127 of 2006 was assigned to learned VI-Additional Sessions Judge, Karachi (South), who after examination of the complainant/applicant and his witness, brought the complaint on record and registered the same and issued B.Ws. Against the accused persons vide order, dated 7-10-2006.
6. ' Respondent No,5, assailed the order before this Court, through Criminal Revision Application No,134 of 2006, which was allowed by order, dated 21-2-2007 and the proceedings arising out of private complaint in respect of respondent No,5 were quashed, with directions that the case against co- accused persons is distinguishable and shall proceed according to law, before the trial Court.
7. ' Being aggrieved the applicant preferred a time barred Criminal Petition for Leave to Appeal No, 52-K/2007, against the order, dated 21-2-2007, which was dismissed and leave was refused vide order, dated 13-7-2007.
8. ' However, on 14-6-2008 on dismissal of Criminal Petition for Leave to Appeal, the applicant has assailed the order, dated 5-1-2007 through presenting Criminal Miscellaneous Application No,130 of 2008.
9. ' Applicant insisted for disposal of the case and straightaway argued his case in person. He states that crime No,494 of 2005 was registered with Police Station Preedy on 26-9-2005, but matter remained pending without any progress, as such a direct complaint viz. M.A. No,127 of 2006 was submitted. He further states that order passed by Judicial Magistrate, dated 5-1-2007 is illegal, unlawful and is the result of misreading and non-reading of evidence and passed in his absence and is liable to be set aside, as he has not applied his judicial mind.
10. ' On the other hand Mr. Muhammad Ashraf Qazi learned counsel for respondents Nos. 4 and 5, so also Mr. Muhammad Iqbal Kalhoro A.P.G. And Mr. Muhammad Bux Awan State counsel supported the impugned order, dated 5-1-2007, passed by Civil Judge/Judicial Magistrate-VIII, Karachi South to be a legal and proper order. Mr. Muhammad Ashraf Qazi further states that, actual facts are suppressed by the applicant in the present matter with mala fide intention, else he is well aware in respect of orders passed time to time in a direct complaint (M.A. No,127 of 2006), which was submitted by the applicant after recording of the F.I.R. No,494 of 2005. He further added that Criminal Revision No, 134 of 2006 was submitted on 11-11-2006, by one of the accused namely Abbas D. Habib and that was allowed and proceedings were quashed against said applicant having distinguished case from co-accused, whereas one of the accused namely Mahboob Ali Rajjani died during pendency of the case. Being aggrieved and dissatisfied Criminal Petition for Leave to Appeal No,52-K/2007 was preferred by present applicant, but that was also dismissed being time barred, as well as on merits vide order, dated 13-7-2007. Not only this but evidence of the applicant as well as of his witness namely Shoaib Hatim was also recorded on 29-5-2007, so also statement of accused under section 342, Cr.P.C. On 25-8-2007, and matter is pending for final arguments, and at this stage Criminal Miscellaneous Application is submitted and challenged the order passed on 5-1-2007 by the VIII-Civil Judge/Judicial Magistrate Karachi South, therefore present application is liable to be dismissed as matter is sub judiced before a competent Court of law. Reliance is placed on a case of Jamshed Ahmad v. Muhammad Akram Khan and another (1975 SCMR 149), Bahadur and another v. The State (PLD 1985 SC 62), Hasan Din v. Muhammad Mushtaq and 2 others (1978 SCM R 49), Abdur Rashid v. Pakistan and others (1969 SCM R 141) and Shahadat Ali v. Mubarik Shah and another (PLD 1986 SC 347 head note (b).
11. ' On perusal of record, it reveals that impugned order, dated 5-1-2007 is the result of report submitted by the I.O. Else Judge has to apply his own mind and to pass an appropriate order based upon some material and there must be some reasons for agreed or disagreed as purpose of submission of report is to scrutinize the matter at the first instance, and not only to forward the same or to act as a post office, because report of S.H.O./I.O. Submitted with the Magistrate is not binding upon him, even be a result if reinvestigation if conducted in compliance of the directions of the Board under Police Order, 2002. As A such Magistrate be so conscious at the time of passing of the order, looking to the interests of the parties and such type of orders not suited to be passed by Judicial Magistrate. However, each and every case is to be decided on its own merits.##TE# ' So far present case is concerned, applicant suppressed the entire facts, else he himself filed a direct complaint and appeared to the level of Honourable Supreme Court of Pakistan on same facts and cause of action during pendency or thereafter hence, applicant has to point out any illegality for interference at this stage. Powers under section 561-A, Cr.P.C. Are to be used in special circumstances and not in an each and every case. Once matter is decided and orders passed by the Honourable Supreme Court, which attained finality and direct complaint is sub judiced before the competent Court of law for final arguments in respect of co-accused after quashment of the proceedings against one of the accused, how matter will be reopened which is based on same facts and cause of action. Not only this but more important factor in the present matter is that with some mala fide intention, the applicant has suppressed entire facts and law does not support to the litigant having no clean hands. Looking to the aforesaid facts, circumstances and law relied by the learned counsel for the respondents, ##TE#I am of the view that order passed by the VIII- Judicial Magistrate Karachi South cannot be reopened at this stage as applicant has not disclosed such special circumstances which require interference at this stage, when orders were passed a long back i,e, 5-1-2007 and applicant was fully aware in this respect but remained silent for reasons best known to him. Even otherwise, private complaint is a remedy and availed by the applicant and matter is pending for final disposal on merits. It is settled law that private complaint would proceed first instead of case registered by the police, but this is not a case where facts have been suppressed and no legal and fresh ground has been disclosed. So far the law relied upon by the learned counsel for the Respondents Nos. 4 and 5, is so relevant mostly having similar facts and circumstances. However, it is not understandable as to what benefit he wants to get from proceeding both viz. F.I.R. And private complaint, though the conduct of the applicant suggests that the only just wants to put pressure upon the high-ups of the bank in order to recover his robbed money from them nothing else. With above observations Criminal Miscellaneous Application No,130 of 2008 is dismissed.