P L D 1960 (W (PLP)

This is an application in revision by Muhammad Farooq and Muhammad Ayub under sections 561‑A and 439, Cr. P. C. The facts of the case are that Rais Hassan Khan‑opposite party‑made a complaint to the District Magist rate, Sanghar, against three persons including two of these applicants. The District Magistrate examined the complainant on 8th April and being satisfied that there was a criminal case made out prima facie summoned the accused persons who are now the appli cants before me. The accused‑applicants have urged before me that the matter between them and the complainant Rais Hassan Khan was entirely civil and, therefore, they prayed that the District Magistrate be asked not to proceed with the trial of the case and the parties be left to agitate the matter in a Civil Court. According to the applicants, there was a contract between the parties under which all the disputes should be referred to the Civil Court for arbit ration. It was also pointed out that the accused persons were living in Karachi and their going to Sanghar would mean unneces sary loss to them. It was argued that the issue of process by the District Magistrate amounted to an abuse of the procedure fair the purposes of section 561‑A, Cr. P. C. and, therefore, this Court should interfere at an early stage. Objection was taken by Mr. Nasiruddin representing the Government and by the counsel for the opposite party. The objection was that this was a revision under section 435, Cr. P. C. and a Division Bench of this Court had decided that the applicants should first apply for redress in the Court of the Sessions Judge if they had any grievance against the order of the District Magistrate and that the High Court should not be the first instance. Secondly, it was pointed out not an application under section 561‑A, Cr. P. C. though the section was mentioned in the application. There was no abuse of the process of the Court involved. It was merely an application in revision and should be treated as such. As regards the first point, I have been shown a ruling given Bench of this Court in Criminal Revision No. 308 Mst. Mariam v. Mst. Fatima and others in which the refused to hear a revision application on the ground that be heard by the Sessions Judge first and the hearing of application in this Court would be a departure from a practice. In that revision application the order of admission was record ed Division Bench of this Court. I have no doubt in my mind that this Court should not an application for revision where the applicant could have to the Sessions Judge and he had not done so. It is true certain cases it has been held by some High Courts in that if the cases are admitted they must be of on merits. The learned counsel for the applicant urged before me that this application should not be taken as one under section 435 and 439, Cr. P. C. but under section 561‑A. A perusal of section 561‑A would show that the High Court has power to interfere at an interlocutory stage of a criminal proceeding. The main intention is to prevent the abuse of the powers of any Court but e a reading of the section would show that such a power should be exercised in cases and circumstances which are not covered by the express provisions of the Code and where injustice has been) done I am, however, not satisfied that in this case there has been any abuse of the process of the Court. The complainant has made an application alleging that the accused had issued him a cheque which was to be cashed a month later. When the time of cashing the cheque came the Bank refused to honour the cheque and the complainant went to the accused several times but was refused payment. The District Magistrate took this statement of the complain ant on oath and was apparently satisfied that a prima facie case had been made out against the accused. The learned counsel for the applicant pointed out several circumstances to show the bona fides of the accused persons but they all could have been placed before the Magistrate before the charge was framed. I am of the opinion that there is not sufficient material at this stage to hold that the District Magistrate, exercised his judg ment wrongly. I, therefore decline to interfere in this case. The applicants should have full liberty to agitate this matter again before the trial Court. K. B. A./A. H. Petition dismissed.