1991 PLP 951 (MLD)

(2) Waqarul Haq alias Mithu and another petitioner v. The State respondent P L D 1988 Lahore 336.

4. Haji Muhammad Iqbal Khan Kundi, Advocate on behalf of the respondents in reply argued that the petitioner should have applied for leave to appeal under section 447 Cr.P.C. against the acquittal of the accused under section 249-A Cr.P.C.

5. Mr. Abdul Latif Baloch, Advocate, learned counsel for the State supported the learned counsel for the petitioner that the complaint should have been disposed of in accordance with the provisions of Chapter XVI of the Criminal Procedure Code.

6. Having given my careful consideration to the respective contentions of the learned counsel for the parties and after going through the record and the case-law cited at the Bar, I have come to the conclusion that the impugned order is not sustainable in law. The operative part of the order impugned reads as under:-- "In view of the above going reasons I accept the plea taken by accused under section 249-A Cr.P.C. and dismiss the complaint." The reasons given for dismissal of complaint were that police had recommended the cancellation of previous case under section 506/148/149/447, P.P.C. vide F.I.R. No. 46 and the same was cancelled by S.D.M. Kulachi. He did not pass an order of acquittal of the accused-respondents under section 249-A Cr.P.C. as understood by the learned counsel for the petitioner. The learned Magistrate also did not care to see the provision of section 249-A Cr.P.C. so as to pass a correct order. Section 241-A Cr.P.C. reads as under:- "Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence." The aforestated provision of law empowers the Magistrate to acquit an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded he considers that the charge is groundless or that there is no probability of conviction of the accused of the offence charged with. The impugned order reproduced above would show that the Magistrate passed no order of acquittal of the accused. Instead he dismissed the complaint. Assuming that the order passed was of acquittal of the accused-respondents, we find that the order is not supported by reasons. In the reported case titled The Karachi Electric Supply Corporation appellants v. Naseer Ahmad respondent (1986 PCr.LJ 1684 Karachi) while dealing with a similar matter it was observed as under:-- "First of all the learned Magistrate has hardly given any reason to support the order of acquittal. The authorities relied upon by him have not been discussed. He has also overlooked the fact of framing charge against the accused. Obviously framing of charge raised a presumption that the Police papers laid before him disclosed prima facie case against the accused. This being so, the accused could not be acquitted unless the Court had proceeded with the case and the material was brought on record justifying the passing of acquittal order. Admittedly the case made no progress whatsoever subsequent to framing of charge. However, a photo copy of the supplementary bill issued by K.E.S.C. to the accused was produced before the learned Magistrate alongwith the application under section 249-A Cr.P.C. It seems he based the acquittal of the accused on the said document." The dismissal of complaint and acquittal of the accused are two different orders which if made simultaneously smack of indecent haste apart from its being against the provision of law. In the case of Mst. Tasleem v. Abdul Rashid Bacha (P.L.D. 1989 Peshawar 28) it is held:- "In the case in hand the trial Court had not yet applied its mind for the disposal of the complaint lodged before it when it decided to proceed with the acquittal of the accused. Such a procedure had obviously prejudiced the complainant as the consequences flowing. from a mere dismissal of the complaint and acquittal of the accused are not only different but significant in their import. In the former case the scope for bringing the accused to book remains open whereas in the latter case the accused is finally and irrevocably, subject to appeal if any, absolved of the charges levelled against him." In the instance case, while dismissing the complaint, the Magistrate gave no reasons. and the one given was not legally tenable. The cancellation of previous case could not be made basis for dismissing the complaint. That order was an administrative order not rendering the Magistrate functus officio. He was quite competent to entertain and deal with complaint on the material presented to him. In this behalf the case of Bahadur and another v. The State and another (P L D 1985 S C 62) may be cited. His Lordship dealing with this aspect of law observed as under:-- "Though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all State power there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173,Cr.P.C. he does not function as a criminal Court:" The rule laid down in the aforementioned case was relied upon by the Lahore High Court in the case Waqarul Haq v. The State (P.L.D 1988 Lahore 336). In para 12 of this judgment it is observed as under:-- "There has been a controversy whether the order of the Magistrate made in regard to persons falling within the category (i) was a judicial and hence a revisable order or an administrative and hence an unrevisable order. It was held in Wazir v. The State P L D 1962 (W.P) Lahore 405 (F.B)that such an order is an administrative order and, therefore, the Magistrate making it is not an "Inferior Criminal Court" within the meaning of sections 435 and 439,Cr.P.C. This view has been confirmed in Bahadur and another v. The State P L D 1985 Supreme Court 62 and the controversy must now be taken to have been set at rest."

7. The judicial pronouncements referred to above lead to only one conclusion that the learned S.D.M. was under legal obligation to have disposed of the complaint of the petitioner before him in accordance with the procedure laid down in Chapter XVI of the Cr.P.C., and previous cancellation of the case could not be made basis for rejecting the complaint or acquitting the accused under section 249-A Cr.P.C. The impugned order is, therefore, not sustainable in law which is, therefore, set aside and the case is sent back to the trial Court (S.D.M.,Kulachi) for disposal strictly in accordance with the procedure laid down in Chapter XVI of the Criminal Procedure Code. N.H.Q./1172/P??????????????????????????????????????????????????????????????????????????????????????????????? Case remanded.