IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Misc. Application No.S-81 of 2021

Applicant: Azad Hussain Mallah, through Mr. Nisar Ahmed Mallah, Advocate.

Respondent: Ms. Rizwana Jabeen Siddiqui, Advocate.

State: Through Syed Sardar Ali Shah, D.P.G.

Date of hearing: 23.08.2021

Date of decision: 23.08.2021

O R D E R

Zulfiqar Ali Sangi, J: Through this application, the applicant has assailed the order dated 19.01.2021, passed by Special Judge, Anti-Corruption (Provisional) Sukkur Division @ Sukkur, wherein an application under Section 249-A Cr.P.C, filed on behalf of the applicant, was dismissed.

2. Learned Counsel for the Applicant submits that FIR was lodged with malice intent and during the investigation, Complainant gave a written consent before the Investigation Officer that he does not want to proceed before further against the accused; however with malafide intention, challan was submitted before the learned trial Court and in the charge sheet, these contentions were mentioned by the Investigation Officer; that the affidavit in this respect has also been filed by Complainant before the Special Judge, Anti-Corruption, Provincial Sukkur, wherein he submitted that he does not want to proceed further against the applicant; however inspite of that, learned trial Court did not consider these facts. Lastly, he prayed that the applicant may be acquitted in the above circumstances.

3. Learned counsel representing the complainant submits that the Complainant does not want to proceed further against the applicant and she has no objection if the instant application be allowed and the applicant may be acquitted from the charges.

4. Heard learned Counsel for the Applicant, Complainant and DPG as well.

5. It is observed that FIR was registered and investigation was completed, the challan was submitted before the trial court and thereafter the trial court took cognizance of the offence. The offence for which the applicant is charged is not compoundable and the affidavit filed on behalf of complainant before learned trial court only states that complainant does not want to prosecute the applicant which is no ground to acquit the applicant. The only ground for acquittal under section 249-A is the “that charge is groundless or that there is no probability of the accused being convicted of any offence”. Learned counsel for the applicant has failed to point out any of the above said ground in the case.

6. Learned counsel was also put on notice to satisfy this court about the maintainability of this application under Section 561-A Cr. P.C, against the order on application under section 249-A Cr.P.C, in view of judgment of Hon’ble Supreme Court in the case of Bashir Ahmed vs. Zafar-ul-Islam and others reported as PLD 2004 SC 298 for which he has not given satisfactory reply and submits that this court has inherent jurisdiction under section 561-A Cr.P.C against the order passed on an application under section 249-A Cr.P.C. The Hon’ble Supreme Court in the case of Bashir Ahmed (supra) observed that where the application under Section 249-A Cr.P.C was dismissed by the trial court, the proper remedy for the aggrieved person was under Section 439 or 439-(A) Cr.P.C, as the case may be, and not under Section 561-A Cr.P.C as the provisions of Section 561-A Cr.P.C were not meant to provide an additional or alternate remedy. In view of this proposition, this application is hereby dismissed being not maintainable so also having no merits.

JUDGE

Faisal Mumtaz/PS

Since the complainant is appearing regularly in the courts, therefore, the best course is to record his evidence and the accused cannot be acquitted on the basis of only affidavit submitted by the Complainant.