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Criminal Miscellaneous No. 294/Q of 1982, decided on 30th November, 1982.

-- S. 561-A-Quashment of proceedings-Mere fact of matter having been pending for some time and prosecution witnesses did not appear, held, not ipso facto valid ground for quashment of proceedings.

-- S. 561-A-Quashment of proceedings-Provisions of S. 561-A- Invoked to redress grievance where no other procedure available--- Power given by S. 561-A -Cannot be utilised to divert ordinary course of Criminal Procedure Code, 1898-High Court, held, extre mely relevant to interfere at intermediate stages.

-- Ss. 439; 439-A & 561-A-Revision-High Court not competent to entertain any proceedings in revision with respect to order made by Sessions Court under S. 439-A-Entertaining petition under S. 561-A in circumstances, held, tantamounts to circumventing provisions of S. 439 (4), Criminal Procedure Code, 1898.

Malik Muhammad Nawaz for Petitioner.

Shahid Iqbal, A. A.-G. under Court's Direction.

Date of heraing : 30th November 1982.

This is an application under section 561-A, Cr. P. C. for the quashment of proceedings in the case, titled State v. Sarwar Ali and others' pending in the Court of Raja Abdul Qayyum, Civil Judge/Magistrate Section 30. Sargodha.

2. .The facts, relevant for the disposal of this petition are that a case under section 451/419 of the Pakistan Penal Code, was registered against the petitioner and another. The learned trial Magistrate by his order dated 2nd April 1981, acquitted the accused under section 249-A of the Criminal Procedure Code, on the ground that the witnesses did not appear in the Court despite various adjournments from time to time. On revision, the learned Additional Sessions Judge, Sargodha, set aside the order of acquittal, and remanded the case for trial to the learned Magistrate. The parties were directed to appear before the trial Court on 10th July 1982., Thereafter, the parties have been participating in the proceedings. After a lapse of about four months, this petition for quashment has been filed inter alia on the ground that the petitioner and his co-accused have not committed any offence, and that they have been dragged in this case for a considerable long period, only for the reason that the complainant is a very influential person. I am not inclined to exercise my discretion for the quashment of the proceedings, at this stage. The learned Additional Sessions Judge has rightly observed that the order of acquittal was passed without hearing the prosecutor and no attempt was made to secure the attendance of the witnesses. The mere fact that the matter is pending for some time and the prosecution witnesses did not appear is not ipso facto a valid ground for quashment of the proceedings. Furthermore, the provisions of section 561-A, Cr. P. C. are invoked to redress the grievances where no other procedure is available or has been provided by the Code of Criminal Procedure. The power given by section 561-A, Cr. P. C. can certainly not be utilised to divert the ordinary course of Cr. P. C. It is well settled that the High Court should be extremely reluctant to interfere at intermediate stages. The question whether prima facie any case has been made out against the petitioner or not is a matter relating to the merits of the case, which the learned Magistrate taking cognizance of the case, shall decide at appropriate stage. The learned Additional Sessions Judge has already exercised his revisional jurisdiction under section 439-A, Cr. P. C. while remanding the case for trial to the learned Magistrate. In terms of Sub section (4) of section 439, Cr. P. C., High Court is not competent to entertain any proceedings in revision with respect to an order made by the learned Additional Sessions Judge under section 439-A. This being so, to entertain the present petition for quashment under section 561-A. Cr. P. C. would have the effect of circumventing the provisions of section 439 (4) Cr. P. C.

3. I may however, observe that the petitioner may, if so advised, approach the learned trial Magistrate under section 249-A, Cr. P. C. at appropriate stage, if any material is available on record to exculpate the petitioner. With these observations, the application is dismissed.

Application dismissed.

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