1. 1 and 2. The applicant seeks quashment of proceedings of direct complaint No,10 of 2000 (Thadomal v. Fatehchand), pending against the present applicant, before the Court of learned Judicial Magistrate, Ghotki and impugned the order dated 26-8-2000, with a prayer to quash the process issued by the said trial Court.
2. ' The operative part of the order is reproduced as under:-- ' "After perusing the entire material available on record and the cases relied upon by the learned Advocate for complainant pointed above which are applicable to the circumstances of the instant case I am of the firm opinion that complainant has made out prima facie case/offence punishable under section 11 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 against accused Fateh Muhammad and the case is worth proceedings. It is, therefore, ordered, that process be issued to accused Fateh Chand in terms of section 204, Cr.P.C. To face trial for the alleged offence and should furnish surety of Rs,20,000 (Twenty thousand) and P.R. Bond in the like amount."
3. ' Briefly stated, the background of the case (direct complaint) is that on 13-11-1986 accused Fateh Chand had lodged F.I.R. Bearing No,259 of 1986 under sections 501, 506/2, 504/147, 148 and 11, Offence of Zina Enforcement of Hudood Ordinance of 1979, wherein he had levelled allegation against complainant Thado Mal of having committed Zina with Shirmati, Asha Bai. The police after investigation submitted challan against Thado Mal for having committed Zina with Shirimati Ashy Bai. In the same case other persons were challaned for advancing threats of murder to Fateh Chand the complainant of said case.
4. ' The trial Court viz. Learned 1st Additional Sessions Court, Sukkur after having exonerating Thado Mal of Zina and others accused persons of advancing threats of murder, acquitted them vide judgment, dated 3-2-1992.
5. ' After having acquitted from the charge of Zina the complainant Thado Mal filed the direct complaint against said Fateh Chand for levelling false imputation of Zina. The complainant Thado Mal in his complaint has mentioned that after such false imputation he has been brought into disrespect. Similarly, the people do see him, his sons/daughters with hatred.
6. ' After having recorded statement under section 200, Cr.P.C. Of complainant, the P.E. Was held and statement under section 202, Cr.P.C. Of witnesses of complainant Thado Mal, namely, Eisar Das son of Ghaman Mal, Hindu, retired Primary Teacher, resident of Ghotki Town and Bashak Ram alias Bashoo Mal son of Tahal Mal, Hindu resident of Ghotki were recorded. Both the witnesses in their respective statement supported the complainant as well as statement of complainant.
7. ' Besides, perusing the complaint, statement of complainant/witnesses, the F.I.R. Lodged by Fateh Chand alleging Thado Mal of having committed Zina and the judgment of acquittal as well as deposition of P.Ws. The trial Court had heard Syed Abdul Lateef Shah, the learned Advocate of complainant Thado Mal. The learned Advocate for complainant contended that accused Thado Mal is liable to be prosecuted for the offence of Qazf liable to Tazir. He further contended that accused Fateh Chand is not exempted of the law by virtue of Hindu religion. Learned Advocate for complainant further contended that by virtue of Hindu Religion the exception is that Hadd shall not be enforced but the accused shall be proceeded against for the offence of Qazf liable to Tazir.
8. ' The trial Court while examining the material and case-law brought on the file based his opinion that complainant has made out prima facie case punishable under section 11 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, against accused/applicant.
9. ' The above matter came up for hearing on 22-11-2000 with the result this Court had issued the notice to the respondents and in response of the process the party Advocates have been heard at length and examined the material placed on record.
10. ' Mr. S. Saifuddin Shah, learned counsel for the applicant has cited the following cases:- ' Chanderban and others v. The State 1997 PCr.LJ 1696, Khushi Muhammad v. Niaz Ali and others 1984 PCr.LJ 2223, Bakhat Ali and another v. The State 1993 PCr.LJ 1872 and Asif Ali Zardari v. The State and another 1992 PCr.LJ 58.
11. ' On the other hand, Mr. Habibullah Shaikh, the learned counsel for the respondent No,2, has disputed the maintainability of this Criminal Miscellaneous Application under section 561-A, Cr.P.C., as the trial Court has not been moved under section 249-A, Cr.P.C. And it is premature to hold that on the allegations levelled against the applicant no case was made out against him. Mere issuance of process does not mean that no offence is made out against the applicant. The learned Advocate for the respondent. No,2 has relied upon case of Khushi Muhammad v. The State reported in 1979 SCM R 94, Ghulam Muhammad v. Muzammal Khan reported in PLD 1967 SC 317 and the case of State through Advocate-General, N.-W.F.P. v. Gulzar Muhammad and others reported in 1998 SCM R 873.
12. In light of said authorities PLD 1967 SC 317, it is held that alternative remedy having been available to the petitioner under section 249-A, Cr.P.C. Resort could not be had to provisions of section 561-A, Cr.P.C. The most appropriate remedy in such circumstances is to approach the trial Court under section 249-A, Cr.P.C. So that the trial Court may apply his mind to such aspect of matter in the first instance and decide the matter in terms of section 249-A, Cr.P.C.
13. ' The similar view has been taken in the other case 1998 SCM R 873 and it was held that the trial Court can acquit the accused under section 249-A, Cr.P.C. And section 265-K, Cr.P.C. As the case may be, at any stage of the proceedings and in the circumstances of such case the appropriate remedy for the accused appears to be the trial Court should thereupon apply its mind to this aspect of the matter in the first instance. Nonetheless both the jurisdictions under sections 249- A/265-K, Cr.P.C. And 56 1 -A, Cr . P . C . Are co-extensive.
14. ' On this point, there are so many authorities like S. Manzoor Hussain Shah v. Syed Agha Hassan Naqvi and others reported in 1983 SCMR 775 and in case of Raja Haq Nawaz v. Muhammad Afzal and others reported in 1971 SCM R 698.
15. ' Learned State Counsel has also supported the legal position and has drawn attention to the provisions of section 249-A, Cr.P.C. Which is reproduced as under:- "249-A. Power of Magistrate to acquit accused at any stays.- Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence."
16. In the light of reported authorities, the applicant may approach the trial Court at the first instance, whether in term of section 249-A, Cr.P.C. The applicant is entitled to the acquittal. The alternate remedy is available to the applicant under sections 249-A/265-K, Cr.P.C. For approaching the trial Court. Accordingly, being misconceived, this criminal miscellaneous is dismissed alongwith the listed application.