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Criminal Miscellaneous Application No. 56 of 1983, decided on 14th January, 1986.
---Ss.249-A & 561-A--Quashing of proceedings--Jurisdiction under S.561-A, Cr.P.C. neither alternate nor additional--Application under S.249-A, Cr.P.C. not moved in lower Court before coming to High Court, under S.561-A, Cr.P.C.--Petition dismissed being premature.
Khushi Muhammad and 4 others v.The State 1979 S C M R 94 and Latif Qureshi v.The State 1982 S C M R 101 rel.
Hatif Khudai for Applicants.
Asad Ali Bilgrami for Respondents.
Date of hearing: 14th January, 1986.
This case is pending since 1983. Mr. Hatif Khudai, learned counsel for the petitioners is called absent. He has submitted no application for adjournment. However, one of the petitioners namely Abdul Majeed is present in person. He being an advocate can argue the matter himself. He, however, states that case file is not available with him.
I am inclined to feel that this petition can be disposed of on legal issue. It is an admitted position that before coming to this Court no application under section 249-A, Cr.P.C. was moved in the lower Court. There are several authorities on this point that if alternate r3medy is available the extraordinary jurisdiction vested in this Court under section 561-A, Cr.P.C. cannot be invoked. It is a settled law that jurisdiction under this section is neither alternate nor additional. Mr. Makhdoom Abdul Wali appearing on behalf of the State has referred to two Supreme Court authorities in this connection. The first authority is reported as Khushi Muhammad and four others v. The State 1979 S C M R 94 wherein the view taken was that alternative remedy having been available to the petitioners under section 249-A, Cr.P C. resort could not be had to provisions of section 561-A, Cr.P.C. Another case relied upon by the learned State Counsel is of Latif Qureshi v. The State 1982 S C M R 101 wherein it was held that:
"We do not think that the learned Judge in the High Court had committed any error in law in holding that the objection whether the learned Magistrate did have the jurisdiction or not to proceed with the matter was an issue that could be raised before him and that he should determine it in the first instance that is therefore the petition for quashment was premature."
For above reasons the petition is premature which is accordingly is dismissed.
M.A. K. / M-195/ K Petition dismissed.
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