P L D 2002 Lahore 341 (PLP)

The facts, which have given rise to this revision petition under section 435 read with section 439, Cr.P.C., are that Sahibzada Syed Sikandar Shaheen petitioner filed a criminal complaint in the Special Court No.IV, Lahore, constituted under the Anti-Terrorism Act, 1997, against Abdul Aziz and 14 others of police officials for offences under sections 392, 337-F(iii), 302, 324, 148, 149, 452, 354, 365 read with section 511 and section 17 of Ordinance VI of 1979, on 2-6-2000. The complaint contained a note that it contained cross-version of case bearing F.I.R.-No.53 of 1999, pending in the same Court. After entertaining the complaint, the learned Judge recorded the statement of the complainant on 3-7-2000. The complainant got two more witnesses examined on 22-7-2000 and made a statement on 29-7-2000, closing his preliminary evidence. A perusal of the certified copy of the order sheet shows that the learned Presiding Officer heard the arguments for issuing process against the accused on 26-8-2000, but instead of passing any order on 4-9-2000, decided to examine the case alongwith the State-case on 14-9-2000. Similar order was passed on 14-9-2000. Thereafter, the case could not be taken up by the Court, on different dates because of various reasons, including the absence of the learned Presiding Officer on leave. On 6-11-2001, the learned Judge found the complaint to be out of the ambit of clause (b) of section 39 (B) of any provision of the Anti-Terrorism Act, 1997, and transferred the case to the Court of Session, who onward entrusted the same to the Court of Mc. Zawar Ahmad, Additional Sessions Judge, Lahore, vide an order dated 22-11-2001, on 22-12-2001, neither the complainant appeared before the learned Additional Sessions Judge nor his counsel, therefore, the case was adjourned to 2-1-2002, for appropriate Pin order. On 2-1-2002, again ,the position was the same, therefore, the learned Additional Sessions Judge, on second cal;, dismissed the complaint for non prosecution, hence this petition.

2. Learned counsel for the petitioner, while challenging the propriety of the impugned order, submitted that the complaint, in fact, contained cross version of the case bearing F.I.R. No.53 of 1999, in which the petitioner was arraigned as accused, therefore, its dismissal for non-prosecution in the absence of any mandatory provisions of law is highly improper, as.the accused is likely to be prejudiced at his trial.

3. Learned counsel appearing on behalf of the State submitted that the complaint in a cognizable case cannot be dismissed for non-prosecution after the issuance of process under section 247, Cr.P.C. But in the instant case, the process had not been issued under section 204, Cr.P.C., therefore, the learned Additional Sessions Judge was not legally prevented from dismissing the complaint for non-prosecution. Learned counsel for the State, also, objected to the maintainability 6f this revision petition on the ground that the accused, who has earned a valuable right, has not been impleaded as respondent, therefore, this petition merits dismissal.

4. I have considered the arguments put forth by the learned counsel for the parties. Under section 247, Cr.P.C, in case of default in appearance of complainant in a cognizable case after the issuance of process, the Court is empowered to acquit the accused. A plain reading of the section would show that this power is also discretionary to some extent and the Court may also adjourn the hearing of the case to some other date for some reason, which it thinks appropriate but I may reproduce section 247, Cr.P.C.', which reads as under:-- Non-appearance of complainant: "S. 247.--If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, Magistrate shall, notwithstanding anything hereinbefere contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day: Provided that, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance, and proceed with the case: Provided further that nothing in this section shall apply where the offence of which the accused is charged is either congnizable or non-compoundable. " Apparently in case of non-appearance of the complainant after the issuance of process under section 204, Cr.P.C., it is imperative upon the Court to acquit the accused but the provision is not so stringent as it appears to be. The ,A Court has also some discretion and may adjourn the hearing of the case to some other day despite the non-appearance of the complainant but for reasons; which the Court deems appropriate. Learned counsel for the petitioner as well as the learned State Counsel, both, conceded that there is no provision directly applicable to the facts of the case. In the instant case, the complainant had produced his evidence but process had not yet been issued for hearing. On 22-12-2001 the complainant and his counsel both were absent when the case was called, but the Court did not consider it 8 appropriate to dismiss the complaint in default. There is also no provision which makes it imperative upon the Court to dismiss a complaint before the issuance of process for non-appearance of complainant or his counsel, therefore, it was not mandatory for the Court below to dismiss the complaint in default. Ordinarily, if it appears to the Court that the complainant is not interested in the prosecution of his case, the Court has inherent powers to dismiss complaint for non-appearance of the complainant. Such an order does C not prevent the complainant from filing a fresh complaint because the absence of the complainant is not to be followed by an order of acquittal of the accused as envisaged under section 247, Cr.P.C. A perusal of the complaint shows that it contained cross-version of a case, in which the complainant is facing trial in the Special Court constituted under the Anti Terrorism Act, 1997. The complainant had examined his witnesses and in case, he is - compelled to file a fresh complaint and examine his witnesses afresh, it would on the one hand expose the complainant to inconvenience and on the other hand would protract the proceedings unnecessarily. As such, the impugned order having no legal compulsion would not advance the cause of justice. Therefore, it is held to be improper in the exercise of revisional jurisdiction.

5. The second objection regarding, the maintainability of this petition on the ground that the accused have not been impleaded as respondent is of no consequence in view of the law, laid down in PLD 1968 Lahore

570. Under the above discussion, this revision is allowed and the impugned order is set aside. The case is remitted to the Court of learned E Additional Sessions Judge, Lahore, with the direction to proceed in accordance with law. N.H.Q./S-408/L . Case remanded.