ASLAM NOOR KHAN Versus STATE

1. Applicant abovenamed has filed the above petition under section 561‑A, Cr. P. C. for quashment of proceedings pending against him under section 384/342, P.P.C. in the Court of learned S.D.M. Sakrand, on private complaint filed by respondent No. 3, against the applicant and respondent No. 2, who is now dead, on the facts and grounds mentioned in the above petition.

2. The learned Advocate for the applicant in support of the above petition submitted as under :‑

(a) That although applicant has not moved the learned trial Court under section 249‑A, Cr. P. C. the above petition is maintainable in view of the fact, that case reported in P L D 1979 S C 94 is not applicable to facts of this case. In this connection the learned counsel for the applicant relied upon cases reported in 1983 P Cr. L J 132 and 484 and 1980 S C M R 985, as he asserted that the complaint in question was mala fide and was filed to pressurise the applicant in his investigation.

(b) That applicant was public servant at the time of alleged offence committed by him and furthermore said offences prima facie, if prosecution allegations are believed were committed in the course of discharge of his official duties and as such applicant could not have been prosecuted for said offences without proper sanction under section 6(5) of P. Cr. L. Amendment Act, 1958 and that he could only be tried by Special Judge under the said act and jurisdiction assumed by the learned trial Court is therefore without lawful authority and on these grounds alone the proceedings are liable to be quashed.

3. The learned Advocate appearing for respondent No. 3, the complainant, on the other hand submitted that above application was not maintainable, as applicant has failed to move the learned trial Court under section 249‑A. Cr. P. C. in view of law laid down by the Hon'ble Supreme Court, in cases reported in P L D 1981 S C 573/607 and P L D 1979 S C 94.

4. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the private complaint in question as well as cases cited by the learned Advocates before me.

5. I find great force in the contentions raised by the learned Advocate for complainant and State counsel, that as applicant has failed to move the learned trial Court under section 249‑A, Cr. P. C. before coming to this Court, the above petition is not maintainable, in view of the law lard down by Hon'ble Supreme Court in various cases including these cited by the learned Advocate of the complainant and State Counsel.

6. The cases cited by the learned Advocate for applicant are based on different facts completely and as such are not at all applicable to facts of the present case. All the grounds urged by the learned Advocate for applicant can be taken by him before learned trial Court by way of application under B section 249‑A, Cr. P. C. including jurisdiction of the learned trial Court to try the applicant. I have carefully gone through the private complaint in question and would refrain from expressing my opinion about alleged mala fides of the said complaint and/or merits of the said complaint so as not to prejudice the learned trial Court either way, regarding these contentions raised by the learned counsels before me, on merits.

7. In view of my above conclusions, I am of the opinion, that above petition is not maintainable, as applicant has failed to move the learned trial Court under section 249‑A, Cr. P. C. before coming to this Court, in view of law laid down by Hon'ble Supreme Court in various cases, including one reported in P L D 1979 S C 94 and consequently the same is dismissed.

8. Petition dismissed.