MST. RESHAM JAN Versus THE STATE AND 2 OTHERS

1. This is an application under section 561‑A, Cr.P.C. for quashment of order passed by the learned Additional Sessions Judge, Karachi, in Revision Application No. 59 of 1984.

2. The brief facts rise to the present application are that Mst. Resham Jan applicant, filed a direct complaint under sections 323, 504 and 34, P.P.C. against the respondents Abdul Sattar, Hidayatullah and one Ch. Nazir Ahmad. That according to the complainant the incident took place on 23‑11‑1983 in which all the accused allegedly trespassed in her house and beat her with fists. She lodged a report at P.S. Jamshed Quarters, which was recorded as non‑cog and she was directed to file complaint before the proper Court. The applicant then filed the above direct complaint before the Additional City Magistrate Court No.VII East, Karachi, which was forwarded to the police for inquiry and report. However, the Magistrate was pleased to issue process under sections 323, 504 and 34, P.P.C., against the accused. The accused filed criminal revision application before the learned Sessions Judge Karachi West and the same ultimately came up before the VII Additional Sessions Judge, Karachi, West, who was pleased to accept the revision and set aside the order of process by his order dated 25‑7‑1984. This quashment application is directed against the said order.

3. I have heard Mr. S. Nabi Raza learned counsel for the applicant and Mr. Javed Haider Kazmi, learned counsel for respondent No.2, and Mr. Imam Bux Shaikh learned counsel appearing on behalf of the State.

4. The contention for Mr. S. Nabi Raza is that the jurisdiction of the Court was concurrent, the respondents should have moved the application under section 349‑A, Cr.P.C. before the trial Court. That since no charge was framed the order passed by the learned Additional Sessions Judge was premature.

5. Mr. Javed Haider Kazmi appearing for the respondents Nos.2 and 3 has contended that the present application under section 561‑A, Cr.P.C. was not competent against the impugned order which was passed in revision application under section 249‑A, Cr.P.C. because the procees issued by the learned trial Court was without jurisdiction inasmuch as it was a case which was triable by conciliation Court. In support of his contentions he had relied upon the cases 1986 P C r. LJ 2209, P L D 1974 Kar. 459, 1987 PCr.LJ 384 and 1987 P Cr. L J 351.

6. Mr. Imam Bux Shaikh, learned counsel for the State has opposed the above application and has contended that the order passed by learned Additional Sessions Judge was perfectly justified under the law and the application under section 561‑A, Cr.P.C. was not maintainable.

7. I have considered the contentions of the learned counsel and have also gone through the Record and Proceedings of the case.

8. There is no doubt that process was issued by the Magistrate under sections 323, 504 and 34, P.P.C. which are exclusively triable by the Conciliation Court and, therefore, the process issued by the Magistrate was without jurisdiction. In case of Haji Muhammad Sodho and 6 others v. The State 1987 P Cr. L J 351 it was held by Abdul Qadeer Chaudhry, J. that;

9. "Section 561‑A, Cr.P.C. Penal Code sections 323, 504 and 147‑‑Complaint under sections 323, 504 and 147, P P C filed before the Magistrate, which offences however, exclusively triable by Conciliation Court‑‑Proceedings pending before the Magistrate quashed in circumstances."

10. In case of Ataullah Khan v. Mohammad Ikram 1986 P Cr. L J 2409 Sajjad Ali Shah J. has held that;

11. "Section 561‑A, Cr.P.C. would apply to proceedings which are pending, and in the instant case as is obvious from the final order which is impugned, that proceedings have come to an end and there are no pending proceedings; and therefore, the provisions of section 561‑A, Cr.P.C. could not be invoked and the petition was dismissed."

12. There is another important point in this case, which has not been taken up by the learned counsel for the respondents i.e. that the Revision Application No. 59 of 1984 was allowed by the learned VII Additional Sessions Judge on 25‑7‑1984 while the present application under section 561‑A, Cr.P.C. was filed on 17‑9‑1986 thus it was hopelessly time‑barred, and, there is no application for condonation of delay nor any explanation has been offered in the application under section 561‑A, Cr.P.C. itself.

13. In view of the above factual as well as legal position the order passed by learned VII Additional Sessions Judge, Karachi was perfectly legal and I do not find any reason to interfere with the same, and therefore, the above application is hereby dimissed.

14. S. G. D./R‑35/ K Petition dismissed.