1984 P Cr (PLP)

M. Masood Khan for Petitioners. Sh. Hakim Ali for Respondent No.

1. Ijaz Ahmad Ch. for the State. The facts giving rise to this criminal miscellaneous petition are that a case under sections 307, 365, 447 and 148 read with section 149 of the Pakistan Penal Code was registered against Karim Bakhsh, Muhammad Bakhsh, Mushtaq Ahmad, Abdur Razzaq, Allah Yar, Ghulam Ali and Ameer Bakhsh in regard to an incident which occurred on 22nd May, 1978 at 6-30 a.m. in the area of village Kot Qutab, Police Station Saddar Rahimyar Khan District Rahimyar Khan. Thereafter, a complaint relating to the some occurrence was lodged by Muhammad Bakhsh against the maker of the F.I.R. in the police case, namely, Abdul Aziz, Abdul Wahab, Abdul Jabbar, Muhammad Ali, Sultan Mahmood, Ghulam Muhammad, Qamar and Faiz Bakhsh, under sections 307, 325 and 148 read with section 149, P.P.C. Syed Akhtar Naqvi, Senior Civil Judge, Rahimyar Khan, while acting as Magistrate Section 30 was seized of the said two cross-cases. They were fixed before him for 28th July, 1982. The learned Magistrate was not himself present on the said date to hear cases. His Reader, therefore, adjourned both the cases of 8th September, 1982. The complaint case was fixed for 8th September, 1982 for evidence of the complainant. On that date, it was noted by the learned Magistrate that the complainant had not brought his witnesses. He, therefore, dismissed the complaint under section 249 of the Code of Criminal Procedure. His order in this behalf was challenged by the complainant, namely, Muhammad Bakhsh, by means of criminal revision filed before the Sessions Judge, Rahimyar Khan. That revision was accepted by the learned Sessions Judge, the order of the learned Magistrate was set aside and he was directed to re-hear the complaint case. Being dissatisfied with the order of the learned Sessions Judge, the petitioners, Abdul Aziz and others, who are accused in the complaint case, have filed the instant petition, before this Court seeking quashment of the criminal proceedings against them.

2. It was contended by the learned counsel for tie petitioners that the order of the learned Sessions Judge was without jurisdiction inasmuch as the revision petition taken before him was not competent. The arguments proceeds that the order of the learned Magistrate could be challenged by respondent No.1, Muhammad Bakhsh, who had initiated the complaint case by seeking special leave to appeal under subsection (2) of section 417 of the Code of Criminal Procedure, and not by filing the criminal revision before the learned Sessions Judge. In this connection reliance was placed by him on Khair Shah and 4 others v. Hyder Shah and another P L D 1982 Kar.

128. It was also urged by the learned counsel for the petitioners that since the complainant had failed to produce evidence for three long years the learned counsel Magistrate was perfectly justified in closing his evidence and that the learned Sessions Judge had committed material irregularity in interfering with the order passed by the learned trial Court.

3. On the other hand, it was submitted by learned counsel for the respondents that the provisions of section 249 of the Code of Criminal Procedure, which were invoked by the learned .Magistrate for passing the order in question, were not attracted to the present case because the case before him was a complaint case which has been clearly excluded from the purview of section

249. It was also maintained by them that the order of the learned Magistrate was not that of an acquittal and, therefore the complainant could not make use of the provisions of subsection (2) of section 417 of the Code of Criminal Procedure for seeking special leave to appeal against that order. In the circumstances according to learned counsel for the respondents, the only remedy available to the respondents was to invoke the revisional jurisdiction of the learned Sessions Judge. In this connection, he invited my attention to an observation contained in the order of the learned Sessions Judge showing that learned counsel for the petitioners had conceded the jurisdiction of the learned Sessions Judge to hear the revision petition. In addition, it was pointed out by them that since the police case as well as the complaint case had come up before the learned Magistrate together on 8th September, 1982 and two of the accused in the police case were prosecution witnesses in the complaint case and were present before the learned Magistrate their statements could conveniently be recorded by him but he has omitted to do so and had hastened to throw away the complaint case without any legal justification.

4. In reply to the argument addressed by learned counsel for the respondents it was submitted by learned counsel for the petitioners that the learned Magistrate had, in fact dismissed the complaint case under section 249-A of the Code of Criminal Procedure but had inadvertently cited section 249 of the said Code in his order. According to him, the order made by the learned Magistrate was, virtually an order of acquittal and, therefore, it could not be attacked by means of a revision petition.

5. Section 249-A of the Code of Criminal Procedure contemplates an order of acquittal but when a matter is disposed of under section 249 of the said Code it is not necessary to pass an order of acquittal or conviction. By his order under examination the learned Magistrate did not acquit the petitioners. Besides, the learned Magistrate had clearly relied on the provisions of section 249 of the Code of Criminal Procedure for making the order in question. I, therefore, agree with the learned counsel for the respondents that it was an order under section 249 of the Code of Criminal Procedure and not an order under section 249-A of the said Code.

6. It has been held just above the learned Magistrate had dismissed the complaint under section 249 of the Criminal Procedure Code. He did not expressly order the acquittal of the petitioners and it was not necessary for him to do so. His order could not, therefore, be treated as an order of acquittal. In this view of the matter, the revision petition taken to the learned Sessions Judge was competent as the complaint could not seek special leave to appeal against the said order under subsection (2) of section 417 of Code of Criminal Procedure. Admittedly, the jurisdiction of the learned Sessions Judge to hear criminal revision was also conceded by learned counsel for the petitioners. The case of Khair Shah and 4 others, relied upon by learned counsel for the petitioners, is distinguishable inasmuch as in the cited case there was an order of acquittal which is lacking in the case before me. I, therefore, unable to agree with learned counsel for the petitioners that the learned Sessions Judge had no jurisdiction to hear the revision petition.

7. A bare perusal of section 249 of the Code of Criminal Procedure would reveal that it cannot be pressed into service in connection with a complaint case. Admittedly, the case to which it was applied by the learned Magistrate was a complaint case. His order is, therefore, liable to be struck down on the short ground that the provisions of law where. It under he had proceeded to make the order in question were not available for so doing.

8. It was not denied by learned counsel for the petitioners that two of the accused in the police case were prosecution witnesses in the complaint case and were in attendance before the learned Magistrate when he had closed the complaint's case for his failure to produce evidence. No reason whatsoever has been given by the learned Magistrate for not examining the said two witnesses. The learned Sessions Judge was, therefore, right in taking exception to order of the learned Magistrate for his omission to examine the witnesses who were available for the purpose.

9. It is discretionary with this Court to order quashment of criminal proceeding. The police case against the complainant is still pending adjudi cation but the petitioners who were accused in the complaint case have been let off in a hasty manner. The incident involved in both the cases is one and the same. In this State of affairs, therefore, the petitioners do not deserve of discretion in their favour. To put up differently, I would not like to quash the criminal proceedings pending against them.

10. Resultantly, this petition fails. It is accordingly dismissed. S.G.D. Petition dismissed.