' ANWAR ZAHEER JAMALI, J.---By this criminal petition for leave to appeal, petitioner Farhad Ali son of Khewa Din has impugned the order of learned Single Judge in Chambers of High Court of Sindh at Karachi dated 2-4-2010, in Criminal Revision Application No,.42 of 2010, whereby the said criminal revision application was disposed of in the terms that the order dated 22-3-2010, impugned therein, passed by learned 2nd Additional Sessions Judge, Karachi (East) was set aside, and the 'case was remanded to the trial Court with directions to decide the same on the material produced by the complainant at the preliminary stage of the complaint.
2. The only point urged by the learned counsel for the petitioner to challenge the legality of the impugned order is with reference to section 439(2), Cr.P.C., which reads as under:-- "No, order under this section can be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defense."
2(sic) Relying upon the above provision of law, submission of the learned counsel is that although before the provisional Court, the petitioner was arrayed as respondent No,.2, as he was one of the nominated accused in the complaint, but what to speak of any opportunity of hearing to him, even no notice was issued to him before passing of impugned order by the provisional Court.
3. Mr. Zafar Ahmad, learned Additional Prosecutor-General, Sindh, after going through the case record, did not controvert such assertion.
4. In view of the clear language of section 439(2), Cr.P.C., as reproduced above, it was mandatory for the revisional Court to have afforded proper opportunity of hearing to the petitioner, after due notice to him, which the provisional Court admittedly failed to follow.
5. This being the position, for this short reason, this petition is converted into appeal and allowed.
Impugned order passed by the provisional Court is set aside and the case is regarded to the High Court of Sindh for fresh disposal of Criminal Revision No,.42 of 2010, in accordance with law, after affording due opportunity of hearing to all the parties concerned.