1. MUHAMMAD ALI MAZHAR, J.---The facts forming background of this case are that on 25-9-2010, learned IInd Additional Sessions Judge Badin issued a show-cause notice to the S.H.O. Police Station Talhar in S.C. No,15 of 1993 in which it was stated that NBWs against absconding accused Abdul Majeed were sent for execution With directions to return the same to learned Sessions Judge Badin on 20-9-2010 but the S.H.O. Police Station Talhar failed to execute and return the same to the court and knowingly disobeyed the order, therefore, he was called upon to appear in person and show cause as to why he should not be prosecuted under section 187, P.P.C. Thereafter the same learned Judge forwarded a complaint to the DPO Badin to take action against the applicant under Article 155(c and d) of Police Order, 2002. He also referred a complaint in the court of Civil Judge and. J.M. II Badin against the applicant under sections 228 and 187, P.P.C.
2. The applicant moved an application under section 249-A, Cr.P.C. in which besides taking other grounds, he categorically stated in ground No,5 that the basis of the proceedings against the applicant clearly shows that the alleged cause of action accrued on 20-9-2010 while the applicant was posted as S.H.O. Police Station Talhar on 23-9-2010, hence there was no fault on the part of the applicant, therefore, the applicant is entitled for his acquittal from (this case. On this application, learned IInd Civil Judge and J.M. Badin passed an order on 31-12-2010 whereby the application moved under section 249-A, Cr.P.C. was dismissed on the ground that no single witness has been examined in this case as such in absence of evidence of prosecution witnesses, it can not be held that the charge is groundless and since the charge has not been framed against the applicant, therefore, the application was dismissed.
3. I have seen the grounds raised in the 249-A, Cr.P.C. application and ground was very much crucial and essential for proper decision of the application, which important aspect has been overlooked by the trial Court while dismissing the application.
4. Today in court, learned counsel has also filed statement along with certificate dated 22-2-2011 issued by the D.P.O. l3adin in which it is clearly stated that the applicant Abdullah Khan Buriro H/62 was deputed to look after the work of S.H.O. A Police Station Talhar w.e.f 23-9-2010 to 7-10-2010 and this certificate prima facie shows that he was posted at Police Station Talhar after the incident mentioned in the show-cause notice on the basis of which, the proceedings were initiated against him.
5. Since the learned trial Court failed to advert on this important aspect of the case, it would be in the interest of justice to set aside the order dated 31-12-2010 and remand the matter back with directions to decide the application under section 249-A, Cr.P.C. after considering the ground raised in the application. Learned Assistant Prosecutor-General Sindh has no objection on this.
6. Consequently the order dated 31-12-2010 is set aside and matter is remanded to the learned IInd Civil Judge and J.M. Badin to decide the application under section 249-A, Cr.P.C. afresh within a period of one month from the date of A communication of this order.