P L D 1965 Azad J & (PLP)

Sh. Abdul Haiy for Petitioner. M. A. Hafeez, Government Advocate for the State. A kham challan under sections 7 and 13 of the Emergene3d Powers Act and under section 21 of the Public Safety Act was put up against the applicant in the Court of Ch. Rahim Dad Khan Sessions Judge, Mirpur acting as Special Judge for the trial of espionage cases. The prosecution had obtained a remand under section 344, Criminal Procedure Code for collecting further evidence. The challan had yet not been completed when the prosecuting Deputy Superintendent of Police made an application in the Court of the Special Judge on 24‑9‑64, for the withdrawal of the case. The learned Special Judge by his order of the same date allowed the withdrawal of the case and passed an order of discharge of the accused. The accused has now come up in revision before this Court against the order of discharge. It has been argued by the learned counsel for the petitioner that since summons case procedure applies to all cafes in Azad Kashmir irrespective of the fact whether the offence is a summons case offence or a warrant case offence the order of discharge should not have been passed rather an order of acquittal should have been made. He has relied on section 248, Cr. P. C., which provides that if a complainant at any time before a final order is passed in any case under this Chapter XX, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint, the Magistrate may permit him to withdraw the same and shall thereupon acquit the accused. Learned counsel has also referred to section 494, Cr. P. C., and argued that even if this section is applied, even then under clause (b) the order of acquittal should have been made and not one of discharge because no charge is required in the present case. Sh. Abdul Haiy Advocate has quoted Mul Singh v. The Crown (A I R 1923 Lah. 163) in which it has been held that if in a summons case an order of discharge is passed, it amounts an acquittal. He has also referred to Darshan Singh v. The State (P L D 1957 Kar. 210) in which it has been held that when an adjournment is granted under section 344, Cr. P. C. the enquiry has commenced. The learned Government Advocate argued that the order of the learned Special Judge cannot be revised, he relies on subsection (5) of section 5 of the Azad Kashmir Emergency Powers Act, 1958, which was substituted for the original subsection by the Azad Kashmir Emergency Powers Act, 1959. The new subsection (5) of section 5 which has been relied upon by the learned Government Advocate is reproduced below:‑ (v) (a) No appeal shall lie against the order of the Special Courts constituted under this Act: Provided that a person convicted and sentenced by a Special Court may, within 30 days from the date of the order, submit an application for revision to the High Court: (b) The High Court shall on such an application being made by a convicted person, exercise the powers of revision, conferred on a High Court under Cr. P. C. and pass order accordingly. The original subsection (5) .of section 5 of the Azad Kashmir Emergency Powers Act, 1958, read "the orders of the Special Courts shall be final and no appeal or revisions shall lie against the same." According to the provisions of the original subsection (5) the orders of the Special Courts were final and the remedy by way of appeal or revision was expressly barred but then the Government thought better of it and by the Amendment Act 1959, omitted this subsection and replaced it by the amended subsection (5) which does not expressly bar the remedy by way of revision. The amended subsection only takes away the right of appeal, where appeal lay ordinarily under the Cr. P. C.; it does not take away the remedy of revision. The right of appeal was also converted into right of revision by the amended subsection, it was intended to leave the remedy by way of revision in tact which had been taken away by the original subsection (5). Disagreeing with the learned Government Advocate, I hold that the revision is competent. The learned Government Advocate argues that there had been no trial of the accused therefore the order of discharge was the proper order to make in the case. He has referred to Noor Dies v. Azad J. & K. Government (P L D 1961 Azad J & K 12); Abdullah v. Fazal Din (P L D 1960 Azad J & K 24) and Rahman Shah v. Mir Zaman (P L D 1960 Azad, J & K 29). It was held in P L D 1961 Azad J & K 12 that to bar a subsequent trial under section 403, Cr. P. C. there must be a previous trial of the accused and ii was laid down in this authority that the trial of an accused in a summons case or for the matter of that the trial of an accused in any case under the summons case procedure cannot be said to begin until the particulars of the offence are stated to the accused under section 242 of the Code. To the same effect is P L D 1960 Azad J & K

24. The cases relied on by the learned Government Advocate are cases of dismissal of the complaints for default of the appearance of the complainants, the present case before me is distinguishable. This is a case of withdrawal of the case by the prosecution. P L D 1960 Azad J & K 29, which was a Division Bench case, laid down that Azad Kashmir Criminal Procedure Amendment Act, 1958, has practically abolished the procedure prescribed for the trial of warrant cases. Irrespective of the effect whether the offence is a summons case or a warrant case, the procedure laid down in Chapter XX of the Cr. P. C. has been prescribed for the trial of all offences. In view of the rule of law laid down in this Division Bench case section 248 and not section 494, Cr. P. C. would apply to the case of withdrawal and section 248 provides that if at any time before a final order is passed, the complainant is allowed to withdraw his complaint, the Magistrate shall acquit the accused. In view of the above discussion, the revision petition is accepted and it is held that the order should have been one of acquittal rather than of discharge. K. B. A. Petition accepted.