1999 PLP 585 (MLD)

Malik Allah Yar Khan for Petitioner. Hameed Aslam Qureshi for Respondent No.1 Waheed Anwar for the State. Date of hearing: 1st April, 1998 Instant Criminal Miscellaneous has been instituted for the quashment of order dated 6-12-1992 passed by Rao Hamid Mukhtar Khan, Additional Sessions Judge, Chiniot, whereby he accepted the revision petition against order dated 19-7-1992 passed by Mr. Muhammad Akram Chaudhry, M.I.C., Rabwah.

2. Briefly stated the facts are that Msty Zainab Bibi complainant/respondent No.1 filed a direct complaint under section 380, P.P.C. in the Court of R.M. Rabwah, against Ghulam Shabir respondent No.1/petitioner and others for committing theft of golden ornaments weighing 15 Tolas and other household articles. After holding enquiry under section 202, Cr.P.C. the trial Court summoned the accused vide order dated 9-3-1992. During the pendency of that complaint an application under section 249-A, Cr.P.C. moved for the acquittal of .the accused/petitioner, which was accepted vide order dated 19-7-1992. The complainant/respondent No.1 filed a revision petition against the order dated 19-7-1992 which was accepted by the learned Additional Sessions Judge, vide order dated 6-12-1992 and consequently case was .remanded to the trial Court.. Hence the instant petition.

3. Contention of learned counsel for the petitioner is that order dated 6-12-1992 could not be passed as no such revision petition ways-competent against an order passed under section 249-A, Cr.P.C. His contention is that the only remedy available was to file an appeal under section 417.(2), Cr.P.C. In support of his contention, he has relied upon Muhammad Safdar and 4 others v. The State and another (PLD 1996 Lahore 457), Muhammad Sharif v. Muhammad Hussain and 4 others (1993 PCr.LJ 2053) and The State v. Abdul Ghaffar (1996 SCMR 678). He, thus, submitted that the impugned order passed by the revisional Court is patently illegal, so the same be set aside.

4. On the other hand, learned counsel for respondent No.1 had candidly conceded the legal proposition advanced by learned counsel for the petitioner. Similar is the view expressed by the learned counsel for the State i.e. respondent No.2.

5. Admittedly, order dated 19-7-1992 has been passed in a complaint filed by complainant/respondent No.1 and pending in the Court of Resident Magistrate, in an application moved under section 249-A, Cr.P.C. The only remedy against the said order was to file an appeal under section 417(2), Cr.P.C. No revision petition was competent against the said order in view of the express provisions contained in section 417(2), Cr.P.C. Reliance is placed on PLD 1996 Lahore 457, 1993 PCr.LJ 2053 and 1996 SCMR 678 (supra). This being the legal position to which learned counsel for the respondents have no cavil, the order dated 6-12-1992 passed by learned Additional Sessions Judge, is held to be coram non judice. Accordingly, petition is accepted and the impugned order is set aside. The complainant/respondent No.1, however, is at liberty to seek the legal recourse for the redressal of her grievance. N.H.Q./G-94/L Petition accepted.