1997 PLP 1754 (MLD)

Ghulam Farid Sanotra for Petitioner Petitioner Mukhtar Ahmed, resident of Chak Matha, Police Station Paharianwali, Tehsil and District Mandi Baha‑ud‑Din, has filed this petition for writ against Superintendent of Police, Mandi Baha‑ud‑Din and S.H.O., Police Station, Paharianwali, with the prayer that they be directed to recover the stolen property /articles of the petitioner from the illegal custody of accused party and that they should also register a case against the accused persons. This prayer is made with reference to a case F.I.R. No. 109/89, dated 16‑3‑1989 for the commission of crimes punishable under sections 448, 148/149, P.P.C. read with section 14/6/79, Islamic Laws, which resulted in the acquittal of the accused. The grievance of the petitioner is that the acquittal was illegal.

2. Precise contention raised by the learned counsel for the petitioner was that the acquittal order was passed by the Assistant Commissioner with the powers of Magistrate 1st Class, but he was not competent to pass the said order on a petition under section 249‑A, Cr.P.C.

3. On my query, learned counsel for the petitioner elucidated that the F.I.R. No. 109 of 1989 was disposed of by the Magistrate on 28‑12‑1991. On my further query as to why remedy available to the petitioner under the law against the said acquittal was not availed, the learned counsel for the petitioner stated that since the order of the Magistrate was without jurisdiction, he came for a writ to be issued by this Court. He placed reliance on Zafar Alam Babar and 2 others v. Syed Baqar Ali Gilani and 2 others: 1992 PCr.LJ 655, to contend that in this case, this Court could order re‑investigation of the case.

4. Before appreciating the contention of the learned counsel for the petitioner, it is, to nay mind, essential to narrate the background of this case which is as follows.

5. The father of the petitioner allegedly purchased a house from one Ghulam Rasool and allegedly also got possession of the same. According to the petitioner, the said Ghulam Rasool and Muhammad Arshad, Ashraf, Allah Ditta, Ghulam Muhammad, Ghulam Hussain and some ladies namely Rafia, Mariam and Mst. Saleem Akhtar alias Seema, entered into his house which he had purchased, armed with deadly weapons and took away articles etc., hence case F. I. R. No. 109.

6. Learned counsel told me that civil litigation was also going on between the parties and that his suit for declaration that he is the owner of the property, was decreed on 25‑1‑1993 and the appeal against the same was dismissed on 30‑9‑1996 and now Revision Petition No. 25559 of 1996 is pending in this Court before my learned brother Ch. Muhammad Nasim, J.

7. I have gone through the ruling cited by the learned counsel. The facts in this ruling are not identical. Nevertheless, the observation of the Hon'ble Judges therein of the Sindh High Court, was that if a matter has been investigated and the case cancelled by the Magistrate on the report of the investigating police official, there was no bar on reinvestigating the case. In the instant case, the case was not cancelled, rather the accused were acquitted. The remedy against acquittal was available to the State as it was a State case and petition for writ could be filed where there was no other adequate remedy available. In the present case, since the petitioner could approach the learned Sessions Judge, no writ could be issued. Dismissed in limine. A.A./M/254/L Petition dismissed.