2018 P Cr (PLP)

KHADIM HUSSAIN M. SHAIKH, J.

The instant Criminal Miscellaneous Application is directed against the order dated 04.10.2016 passed by the learned 2nd Civil Judge and Judicial Magistrate, Gambat, dismissing the application under section 249-A, Cr.P.C., filed by applicant Mushtaque Ahmed in proceedings bearing No.01 of 2016 for an offence under sections 182, 211, P.P.C. of Police Station, Gambat, seeking quashment thereof.

2. Briefly the facts of the case are that the applicant had lodged an FIR bearing Crime No. 27 of 2011 for offences under sections 382, 447, 448, P.P.C. at Police Station, Gambat on 28.01.2011 against accused Ghulam Nabi, Lal Bux, Munir, Ghulam Hussain alias Laboo and Arbab with the allegations that they by entering into his house had allegedly committed an offence punishable under sections 382, 447, 448, P.P.C. During investigation the case was found false, and, thus, final report recommending for disposal of the case under false class "B" was submitted before Civil Judge and Judicial Magistrate-II, Gambat, which was approved by the learned Magistrate on 26.5.2011. The complainant/applicant Mushtaque Ahmed instead of challenging the aforesaid order, filed Direct Complaint in the Court of Civil Judge and Judicial Magistrate-II, Gambat, which was dismissed vide order dated 16.02.2012, passed by the Civil Judge and Judicial Magistrate-II, Gambat. Being aggrieved by, applicant Mushtaque Ahmed filed Criminal Revision Application No.08 of 2012 in the Court of Sessions Judge, Khairpur Mirs, which was ultimately decided by the learned 1st Additional Sessions Judge, Khairpur Mirs vide order dated 31.7.2013, whereby the said revision application was dismissed. In view of the order earlier passed by the Magistrate concerned, the proceedings No.01/2016, for offences under sections 182, 211, P.P.C. of Police Station, Gambat, have been initiated against the applicant, for having lodged a false FIR. An application under section 249-A, Cr.P.C., moved by the applicant before the Magistrate, has been dismissed vide impugned order, hence this application.

3. Learned advocate for the applicant has mainly contended that the applicant is innocent and he has not committed the offence alleged against him. He, therefore, prays that the subject proceedings against the applicant may be quashed. 4 Learned DPG supports the impugned order dated. 04.10.2016, contending that the subject case can only be decided after the evidence before the trial Court.

5. I have considered the arguments advanced by the learned Counsel for the applicant and learned DPG for the State and have also gone through the material available on record.

6. From a perusal of the record, it would be seen that the applicant Mushtaque Ahmed lodged an FIR bearing Crime No.27/2011, for offence under sections 382, 447, 448, P.P.C. at Police Station Gambat on 28.01.2011 against Ghulam Nabi and four others with the allegations that they by entering into his house had allegedly committed offences punishable under sections 382, 447, 448, P.P.C.; after investigation police submitted report before the Civil Judge and Judicial Magistrate-II, Gambat, recommending the disposal of the subject FIR under false Class "B", which was approved by the Magistrate vide order dated 26.05.2011; the Direct Complaint filed by the applicant was also dismissed by the Civil Judge and Judicial Magistrate-II, Gambat vide order dated 16.02.2012 and then the Criminal Revision Application No.08/2012; challenging the order dated 16.02.2012, filed by the applicant, was also dismissed by the 1st Additional Sessions Judge, Khairpur, vide order dated 31.07.2013, and, thus, I am of the view that prima facie case is made out to proceed against the applicant for having knowingly lodged the subject FIR leveling therein false accusation against Ghulam Nabi and others, rendering himself liable to be proceeded against. The contention of the learned counsel for the applicant that the applicant/accused is innocent and he has been falsely implicated, patently, is a question of fact, needing evidence for its resolution and it being a defence plea as well, can be taken by the applicant before the trial court at an appropriate stage. 5(sic.) In view of what has been discussed above, I am of the considered view that while dismissing application under section 249-A, Cr.P.C. by the learned Magistrate, vide impugned order dated 04.10.2016 has not committed any illegality. The learned advocate for the applicant has also not been able to point out any illegality or jurisdictional defect in the impugned order passed by the learned Magistrate, dismissing application under section 249-A, Cr.P.C. Accordingly, the application is liable to be dismissed. 6(sic.) Above are the reasons of short order dated 30.12.2016, whereby this application was dismissed along with the listed application. JK/M-157/Sindh Applications dismissed.