AMER RAZA NAQVI, J.---Through this criminal revision application filed under sections 435 and 439, Cr.P.C. Read with section 561-A, Cr.P.C. The applicants have challenged order dated 19.09.2012 passed by learned I-Additional Sessions Judge, Khairpur in Criminal Direct Complaint No. 313/2012, through such order the learned I-Additional Sessions Judge, Khairpur admitted the complaint filed ay respondent in the present proceedings. He also ordered bailable warrants to be issued against the applicants in this revision.
2. Learned counsel for the applicants in support of this criminal revision application has mainly argued that the impugned order is not a speaking order and the learned I-Additional Sessions Judge, Khairpur has not discussed the material placed before it.
3. Giving background of the case the learned counsel has submitted that initially the complaint was filed before the Special Judge Anti Terrorism Court Khairpur who after recording the statements of witnesses and examining the material placed before him did not take the cognizance under Anti-Terrorism Act and sent the case to the ordinary court and as a result the matter was sent to the Sessions Court and through the impugned order learned I-Additional Sessions Judge, Khairpur admitted the complaint. Learned counsel submitted that in the direct complaint it was alleged that all three persons whose statements were recorded under sections 200 and 202, Cr.P.C. Were eye-witnesses of the incident in which brother of the complainant was murdered, on the contrary P.W Muhammad Aslam (who was shown as eye-witness in the case) deposed before the AntitTerrorism Court that he reached at the spot after about 15 to 20 minutes however the remaining two witnesses namely Barkat Ali and Izzat Ali (the complainant) were present at the time of incident. Learned counsel submits that with regard to this incident an FIR No. 38/2009 of PS Kot Laloo was also got registered in which it was alleged that unknown persons have committed this crime. Learned counsel submits that impugned order is silent about these facts therefore is not sustainable under the law and the matter may be remanded back to the learned I- Additional Sessions Judge, Khairpur to pass fresh order in accordance with law. Learned counsel has mainly relied upon 2004 PCr.LJ 304 (Karachi). He submitted that Magistrate must not likely accept the written complaints unless he is satisfied that prima facie case is made out against the accused.
4. On the other hand, learned counsel for the respondent has submitted that the need for filing the private complaint arose as police officials did not register the FIR and delay was caused and subsequently even at the time of registration of FIR true facts were not reduced in the FIR and statement of the complainant/respondent in these proceedings was not recorded correctly.
Learned counsel submits that the statements which were recorded by Presiding Officer of Anti- Terrorism Court Khairpur prima facie made out a case in favour of the complainant although it was not found triable by Anti-Terrorism Court and therefore was sent to the ordinary court where after examining all the material, through the impugned order the complaint was admitted. He further submits that brother of the respondent was murdered in this incident and there was no question for him to falsely implicate any other person in the matter. He also submits that charge has been framed in the private complaint and in the same court the case which was outcome of the FIR with regard to the same incident is also pending. He however submitted that he has no objection if the case is remanded back to the learned I-Additional Sessions Judge, Khairpur for passing fresh orders on the direct complaint.
5. Learned A.P.G has submitted that although counsel for the complainant has conceded the request for remand of case but in the present facts and circumstances the remand would not be appropriate. He further submitted that no prejudice has been caused to the applicants by the impugned order as they are also facing the trial in the case registered on the basis of FIR in respect of the same incident and only B.Ws were issued against them through the impugned order. He submitted that in this case murder has taken place and there is sufficient evidence against the present applicants and applicants were not required to be heard by the learned I-Additional Sessions Judge, Khairpur before passing of impugned order. He submitted that the trial is pending and this revision is also pending since 29.10.2012 and during this period applicants were at liberty to move application under section 265-K, Cr.P.C. And they could have been heard on such application had the same was filed and in case it was found by the trial court that evidence available on record is not enough to convict the accused persons and there is no possibility of any conviction the trial court might have acquitted the accused persons and if at this stage the impugned order is set aside it will damage the case of the prosecution and may be fatal to such proceedings pending before the trail court.
6. I have heard all the learned counsel appearing for the parties in the matter and perused the record with their able assistance. Although the learned counsel for respondent conceded to the proposition of remand there is substance in the contention of learned A.P.G therefore it requires consideration. The impugned order was in no way a surprise to the applicants they are also accused in the case, which was outcome of an FIR which was registered in respect of the same incident. Although in the impugned order learned I-Additional Sessions Judge, Khairpur has not discussed in details the material placed before it but he has referred the contents of complaint and also evidence of complainant recorded under section 200, Cr.P.C. And of his witnesses recorded under section 202, Cr.P.C. It is also clear that he has perused such statements before passing of impugned order and had come to the conclusion that prima facie case is made out in favour of the complainant and offence is cognizable. He therefore admitted the complaint and issued bailable warrants against the accused persons in the sum of A Rs.100,000/- each.
7: It is also an admitted fact that applicants had ample opportunity to move any application under section 265-K, Cr.P.C. In case they felt that there is no possibility of conviction in the matter even if the evidence proposed to be produced in the court is so produced. These proceedings have been filed under sections 435 and 439, Cr.P.C. Read with section 561-A, Cr.P.C. The jurisdiction of this court under section 561-A, Cr.P.C. Is a discretionary' one and is to be exercised to meet the ends of justice.
Learned counsel appearing for the parties have referred to the case law reported as 2010 SCM R 105, in the said case law at page No.114 a portion of case law reported as PLD 1973 SC 236 has been referred, which reads as under:- "Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."
8. It was also observed in para No.6 of the said case law that full dress rehearsal of the trial is not possible at the preliminary stage, the said para begins with the observation "It is settled proposition of law that each and every case is to be decided on its own peculiar circumstances and facts."
9. I have already observed that in my humble opinion impugned order has not caused any prejudice to the applicants as they were well aware of the allegations against them and are also accused in the case in which FIR was also registered in connection with the same incident and said case is also pending in the same court, they were not required to be heard before passing of impugned order, furthermore they had ample opportunity to move an application under section 265-K, Cr.P.C. Which has not been done they still can avail that remedy before the learned trial court and in such proceedings they would be at liberty to raise all the pleas and grounds available to them and after hearing the parties the trial court may pass appropriate orders, therefore, in such facts and circumstances, I do not find that in this case the impugned order should be interfered by this Court in its extra ordinary jurisdiction, or in revisional jurisdiction scope of which is very limited.
Impugned order has been passed in exercise of powers which are administrative in nature and revision does not lie against such orders, reference if need be can be made to case law reported as 2006 SCM R 1920.
9. In view of above discussion, this criminal revision application is dismissed. I am thankful to all the learned counsel appearing in the C matter for their valuable assistance.