' FAROOQ ALI CHANNA , J.---In this Criminal Miscellaneous Application, the applicant has assailed the order dated 11-4-2011 passed by IXth Civil Judge and Judicial Magistrate Karachi Central in.
Criminal Case No,619 of 2010, dismissing the application under section 249-A, Cr.P.C. Filed by the applicant on the ground that there is no probability of the accused being convicted if the evidence of the prosecution witness is recorded and entire case is proceeded.
2. The facts leading to lodging the F.I.R. Are that the complainant entered into a sale agreement for the purchase of Plot bearing No,B-89/1, Block-3, KDA Scheme No,33, Karachi, in the sum of Rs.50,00,000 with the accused Fazal Mustafa and paid him Rs.22,50,000 but the accused failed to hand over the property documents to the complainant and also refused to return the amount to the, complainant, therefore, this F.I.R., was lodged.
3. After challan was submitted against the accused, the application under section 249-A, Cr.P.C.
Was filed and it was dismissed by the trial. Court which order is being assailed in this criminal application.
4. During hearing by this Court the question regarding the maintainability of this application under section 561-A, Cr.P.C. Was raised and vide order dated 12-9-2011 the advocate for the applicant was directed to satisfy this Court, the maintainability of the application.
5. I have heard Mr. Nasir Rizwan Khan, advocate for the applicant, he has contended that the application filed from the Order of the trial Court is maintainable as the said dismissal order passed on the application under section 249-A, Cr.P.C. Can be assailed before this Court, in exercise of inherent powers under section 561-A, Cr.P.C. He has further contended that the case was false and fabricated and the accused was being dragged in .The proceedings, since 2009. His further contention is that the question of maintainability of the application, if any may be considered at the stage of final hearing of this application as it is appreciated always that every matter be decided on merits. He has relied upon the cases reported in PLD 1997 Supreme Court 275 (Muhammad Khalid Mukhtar v. The State through Director, F.I.A. (C.B.A) Lahore, 2000 SCM R 122 (Miraj Khan v. Gul Ahmed and 3 others, 1993 SCM R 523 (State through Secretary Ministry of Interior v. Ashiq All Bhutto).
6. Whereas, Mr. Abdul Rehman Kolachi, argued that before taking into consideration the merits of this application, the question of maintainability of application be decided as if the application is not maintainable, the further proceeding on the application on merits would be the wastage of time. He has further contended that there is remedy with the applicant to challenge the order passed on the application under section 249-A, Cr.P.C. Before the Sessions Court in its revisional jurisdiction under section 439 or 439-A, Cr.P.C., and that the applicant without approaching the concerned revisional Court has approached this, Court directly and assailed the impugned order in this application under section 561-A, Cr.P.C. Which is not maintainable as approaching this Court directly amounts to bypass the powers vested in revisional Court.
7. I have considered the arguments of both sides and perused the record so also gone through the case-law, relied upon by the advocate for the applicant. It has been held in the case of Miraj Khan (supra) that:- "Even in the case reported in PLD 1997 SC 275, relied on by the learned counsel for the petitioner this principle has been recognized that the High Court in exceptional cases can exercise jurisdiction under section 561-A, Cr.P.C. Without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C., if the facts of the case so warrant. The main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out then it would amount to abuse of process of law to allow the prosecution to continue with the trial.
' The other citations also contain the same view.
9. The bare perusal of above verdict of Hon'ble Supreme Court of Pakistan reveals that in exceptional cases a High Court can exercise jurisdiction under section 561-A, Cr.P.C. Directly even without approach of the accused to the trial Court for acquittal under section 249-A or 265-K, Cr.P.C. But this practice cannot be allowed, to continue.
10. The above-mentioned observation of Hon'ble Supreme Court will not be applicable to the instant case as in this case the applicant has not invoked the jurisdiction under section 561-A, Cr.P.C. Directly without approaching the trial Court and waiting for orders under section 249-A, Cr.P.C, but he after rejection of his application under section 249-A, Cr.P.C. Has assailed the impugned order, in this application, which is not proper forum and provision as the provision of section 561-A, Cr.P.C. Is not meant to provide an additional or an alternate remedy. The proper remedy with the applicant would be to challenge the illegality, if any in the impugned order in the revisional jurisdiction under sections 439, 439-A, Cr.P.C. As the said provisions specifically offer remedy to the aggrieved person and when a remedy is available with the aggrieved person the question to invoke the inherent powers of the High Court under section 561-A, Cr.P.C. Will not arise.
Reliance is also placed on the case reported in PLD 2004 SC 313 (Government of N.-W.F.P. Through Secretary, Forest Department v. Muhammad Tufail Khan).
10.(sic.) For the reasons stated above, this application whereby the applicant has invoked the inherent powers of the High Court under section 561-A, Cr.P.C. Assailing the impugned order instead of availing proper remedy under section 439 or 439-A Cr.P.C, as the case may be before the Sessions Judge, is not maintainable. The, application stands dismissed.