2022 PLP 80 (YLRN)

FAHIM AHMED SIDDIQUI, J.

Through the instant criminal revision application, the applicants have questioned the impugned order dated 31.08.2018, passed by Civil Judge and Judicial Magistrate-II, Shahdadpur, in Crime No. 73/2018 for the offence under sections 344, 34, P.P.C. registered at Police Station Shahpurchakar. Through the impugned order, the learned Magistrate did not concur with the report under section 173, Cr.P.C. submitted for disposal of the case under A-Class and has taken cognizance in the aforesaid crime.

2. By pressing the instant application, the learned counsel for applicants submits that in the instant case, investigation was twice carried out and in the first investigation, the I. O. has submitted report for disposal of the case under A-Class but the learned Magistrate did not agree with the same and directed for re-investigation through DSP. According to him, after re-investigation a similar report was submitted under A-Class but instead of passing a favourable order, learned Magistrate has taken cognizance. He submits that favourable material is available in support of report submitted for disposal of the case under A-Class. He referred the statements recorded during investigation and points out that in view of the statements of witnesses recorded during the investigation, a case of cancellation of FIR is made out. He submits that it will be appropriate that the order passed by the learned Magistrate is set aside and matter is disposed of at least under A-Class. In support of his contentions, learned counsel relied upon the cases reported in PLD 2014 SC 753 and PLD 2016 SC 55.

3. Learned counsel for respondent No.1 submits that the whereabouts of the alleged abductee is still not known, as such, the learned Magistrate has properly passed the impugned order.

4. Learned Assistant Prosecutor General Sindh supported the impugned order.

5. I have heard the arguments advanced and have scanned the relevant record available or produced before me. I have also gone through the case-law cited by the learned counsel for the applicants.

6. In the instant case, the FIR was disposed of by the police under A-Class but the learned Magistrate has taken cognizance. After cognizance of a case, the alternate remedy is available with the applicants to approach the trial Court either under section 249-A, Cr.P.C. or 265-K, Cr.P.C. When alternate remedy is available before the trial Court, then it will be appropriate that first said remedy be availed. In this respect, reliance can be taken a case reported as 'Director General, Anti-Corruption Establishment v. Muhammad Akram Khan and others' [PLD 2013 SC 401]. Learned counsel for the applicants relied upon the case of 'Muhammad Farooq v. Ahmed Nawaz Jagirani and others' [PLD 2016 SC 55], in which similar proposition of the law has been taken. The instant criminal revision is disposed of with direction to the applicants to approach the trial Court by filing application under appropriate section of law, for premature acquittal, if they are advised so.

7. With these observations, instant criminal revision application is disposed of. SA/S-45/Sindh Order accordingly.