CH. IJAZ AHMAD, J.- The brief facts out of which the present Cr. Misc. Arises are that Mst. Khatoon Begum filed a complaint Ex.PA before the Assistant Commissioner Rajanpur on 30.3.1987 and the first information report was registered at Police Station Sadar Rajanpur on 1.4.1987 under sections 419 420/466 467/468/354/109 PPC. It is pertinent to mention here that the complainant has also filed a private complaint on 21.4.1987 Ex. D.4 which was finally dismissed as withdraw vide order dated 28.11.1988 of Sessions Judge Rajanpur which is reproduced hereunder:- Complainant Mst. Khatoon Begum has withdrawn her private complaint today. This case is, however, triable by Magistrate Section 30. It is. Therefore, transferred to the Court of Senior Civil Judge Magistrate Section 30. Rajanpur for disposal. To come up before the transferee Court on 4.12.1988.
In the F.I.R, the case of the prosecution allegedly is as follows:- Mst. Khatoon Begum complainant who was married with one Noor Muhammad was divorced by her husband in the year 1960. She joined Education Department as a teachers. She retired in the year 1982 and started living with her son Abdul Sami an employee of WAPDA Department. Rao Faruq Ahmad accused is the neighbour of the complainant and was on visiting terms with the family of the complainant' Rao Faruq Ahmad accused dishonestly induced the complainant to become disciple of Rao Baqir Ali accused the Election Officer. Rajanpur whom he pretended as a Saint. Rao Baqir Ali accused further induced the complainant to marry before proceeding on Haj.
He also induced her to marry with Rao Faruq Ahmad accused but the complainant refused, upon which Rao Baqir Ali accused threatened the complainant of dire consequences. One day Rao Faruq Ahmad accused took the complainant to the office of Rao Baqir Ali accused and there again Rao Baqir Ali accused induced the complainant to marry with Rao Faruq Ahmad accused. Meanwhile Rao Faruq Ahmad accused offered a cup of tea to the complainant, the complainant took the tea and then became semi unconscious and Rao Baqir Ali accused obtained her signatures of some papers. A few days later the complainant came to know that her nikah with Rao Faruq Ahmad accused stands registered and that she is his wife. The complainant then told the whole story to her son who obtained the copy of' nikah nama from the office of the Municipal. Committee.
Rajanpur.
The motive alleged by the Prosecution to prepare this fraudulent and fictitious document is to deprive the complainant from her property.
2. The Prosecution produced eight witnesses whereas the accused when examined under Section 342 Cr.P.C, controverted the allegations:levelled 'against them and pleaded, themselves absolutely innocent in the matter The, Learned Magistrate Section 30 Rajanpur vide his judgment dated 5.7.1992 acquitted the accused by giving them benefit of doubt. The complainant Mst. Khatoon Begum was aggrieved by the order of the learned Magistrate filed revision petition before the learned Addl. Sessions Judge who vide his judgment dated 2.5.4,1994 remanded the case to the trial Court with the direction to re-hear the parties on the ev idence available on record. And then to proceed to dispose bt the ease afresh-on merits by giving the detailed reasons and on detailed discussion of the evidence led by the prosecution and also the defence adduced by the respondents. Hence the present Cr. Misc.
3. The learned counsel for the petitioner argued that the judgment of the learned trial Court was based on sound principle whereas the learned Addl. Sessions Judge while exercising revisional jurisdiction set aside the order of acquittal against the canons of justice. He further argued that the judgment of the trial Court was neither erroneous nor against the record, therefore, learned Addl.
Sessions Judge was not justified to set aside the judgment of the trial Court. The learned trial Court did not commit patent illegality or non-reading of the record but the revisional Court set aside the judgment of the learned trial Court without applying its mind. He further argued that the complainant filed complaint on 21.4.1987 which was subsequently withdraw vide order dated 28.11.1988. Therefore, on the same facts and circumstances to try the petitioner is hit by Article 13(2)tb and Sections 401 to 403 Cr.P.C. He further argued that the Addl. Sessions Judge did not consider at all Ex.D.I to D.11, therefore, judgment of the learned Sessions Judge is based on mis readme of the record.
4. The learned counsel for the respondents took a preliminary objection that the learned Addl.
Sessions Judge passed the order in revisional jurisdiction, therefore, present petition under Section 561-A Cr.P.C, is not maintainable. He relied on 1996 M LD 92. 1985 P.Cr.L.J, 2409. 1990 P.Cr.L.J: 522.
The learned counsel for the petitioner in rebuttal argued-that the judgment of the Addl. Sessions Judge is against all canons of justice and basic principle of 'Criminal Jurisprudence and violation of Article 13 of the Constitution and other mandators Provisions of Criminal Procedure Code, therefore, the petition is maintainable and he relied upon 1995 SCM R 1679.
5. I have given my anxious consideration to the contentions of the learned counsel for the parties..
The learned counsel for the respondents has only raised preliminary objection that the petition under Section 561-A Cr.P.C, is not maintainable. He relied upon the judgment of Habib Ullah Qureshi of Karachi High Court 1996 M LD 92 and the relevant. Dtscussion is as page 95 which is reproduced hereunder: - "....The petitioner having availed of the remedy provided under law cannot invoke the jurisdiction of this Court under Section 561-A Cr.P.C, which is exercised to secure the ends of justice or to prevent the abuse of the process of Court. Jurisdiction under Section 561-A Cr.P.C, is not available to a parts by way of additional or alternative jurisdiction after exhausting revisional jurisdiction...."
He also relied upon Ata Ullah Khan's case reported in 1985 (P.Cr.L.J. 2409). He also relied upon the judgment of Karachi High Court in Zafar Hussain s case (1990 P.Cr.L.J. 1928). The last case on which the learned counsel relied upon is Bajwa's case (P.L.D. 1981 S.C. 522) which is not relevant because in this particular case the aggrieved person against the revisional order of the Sessions Judge filed a writ petition, therefore, this case is distinguishable on facts and law. Supreme Court of Pakistan has considered the controversy in Arif Ali Khan's case (1993 SCM R 187) and relevant observation is as follows:- The learned counsel for the petitioners very vehemently contended before us that the order of Magistrate dated 20.8.1991 having been passed on the report of Police Officer submitted to him under Section 137 Cr.P.C., the order was not revisable under Sections 435 to 439 Cr.P.C. In support of his above contention the learned counsel relied on the case of Behadur v. State PLD 1985 SC 62. It is true that in the above cited case this Court clearly laid down that a Magistrate while cancelling a registered criminal case, acting on the report of police submitted to him under section 173 Cr.P.C, though required to act judicially but his orders so passed are not amendable to revisional jurisdiction under sections 435 to 439 Cr.P.C. But this does not mean that where the Court reaches a positive conclusion in a case that a particular order passed by the subordinate criminal Court amounted to an abuse of the process of Court, it would be powerless to rectify the injustice. In the case before us. Firstly, the application filed by respondent No. 2 before the High Court was not under sections 435 to 439 Cr.P.C. But it was a petition under Section 561-A .Cr.P.C. Secondly, on the facts of the case the learned Judge in Chamber reached the conclusion that exclusion of the names of petitioners from the first challan submitted to the Court was a mala fide act on the pan of the police and the manner in which the orders w ere obtained from the Magistrate by the police for discharge of petitioners from the case clearly amounted to an abuse of the process of the Court. On these considerations, the learned Judge in chamber in our view w-as fully justified in setting aside the order of Magistrate under Section 561-A Cr.P.C, and direct him to dispose of the case in accordance with the law. No interference is called for with the order of High Court. The petition is dismissed.
The Supreme Court of Pakistan has considered this question in detail in Mst. Sardar Jan's case 1995 SCM R 1679 and the relevant observation is as follows:- "Here sentence is beyond jurisdiction of Magistrate First Class. It is ab-initio illegal. It is abuse of the process of Court. Obviously section 561-A Cr.P.C, bestows inherent power upon a High Court to check abuse of the process of the Court. It is extensive in its application. Section 439 Cr.P.C, does not circumscribe its such jurisdiction. The words 'noting in this Code" have been intentionally used by the law makers to unbridle scope of Section 561-A Cr.P.C".
6. In view of these circumstances the preliminary objection raised by the respondents counsel has no force. Anyhow I consider the case on merits. The petitioner faced the trial on the complaint filed by the respondents on the same allegation and cause of action which was culminated after completing all the legal formalities and dismissed as withdrawn vide order dated 28.11.1988, therefore, to fact the trial on the basis of same allegation in the F.I.R, case is not sustainable in the eyes of law by virtue of Article 13 of the Constitution. Learned counsel for the respondents did not argue the case on merits except on the point of maintainability of the petition.
In view of what has been discussed above order of the learned Sessions Judge is set aside and the order of the trial Court is upheld.