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Criminal Miscellaneous No. 237/Q of 1973, decided on 1st June 1973.
‑‑‑‑ Ss. 561‑A & 173(3)‑Magistrate cancelling case on police recommendation‑Filing of fresh private complaint for same offence, held, not barred.
Amir All v. State P L D 1968 Lah. 537 rel.
M. A. Bajwa for Petitioner.
Abdul Aziz Qureshi for Respondents.
This is an application under section 561‑A, Cr. P. C. by Abdullah son of Jhanda Khan for the quashment of a private complaint under sec tion 392/34, P. P. C. filed against him by Khan Muhammad respondent No. 1 in relation to the robbing of a tractor and trolly, which is pending in the Court of Assistant Commissioner Okara, District Sahiwal.
2. The facts are that Abdullah petitioner is accused along with his sons Ashraf, Aslam and Wali for robbing Muhammad Ramzan, the driver and Yaqeenuddin, the cleaner, of tractor No. MY‑3619 on 16‑1‑1972. The tractor belonged to Khan Muhammad respondent No. 1 who lodged an F. 1. R. The police reported the accused to be innocent and applied for cancellation of the case. The Assistant Commissioner, Okara who was seized of the case, thereupon cancelled the case by his order dated 6‑4‑1972. Thereafter Khan Muhammad respondent No. 1 filed a private complaint under section 392/34, P. P. C. which is pending in the Court of the Assistant Commissioner, Okara. Abdullah petitioner has prayed for the quashment of those proceedings on the ground that since he had been found innocent by the police after the investigation and the case had been cancelled by the Court under section 173(3), Cr. P. C. that the private complaint about the same facts is not competent and secondly that Muhammad Ramzan driver had filed an affidavit from which it is evident that the offence under sec tion 392, P. P. C. was not made out. The affidavit of Muhammad Ramzan, mentioned in ground No. (v) of the grounds has not been placed on the record and nothing can therefore, be said about it. As to the legal question raised by the petitioner's counsel, it has been held in Amir Ali v. State (P L D 1968 Lah. 537) that notwithstanding the cancellation of case by the trial Magistrate under section 173 (3), Cr. P. C. on the recommendation of the police, it is open to the complainant to lodge a private complaint. As such there is no force in this petition. The same is therefore, dismissed.
Petition dismissed.
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