1985 P Cr (PLP)

‑‑‑S.10‑‑Criminal Procedure Code (V of 1898), S.439‑‑Revision‑‑Offence of Zina‑‑Complaint dismissed for non‑prosecution‑‑Application for restoration‑‑Notice issued to accused to contest such application which was pending in Court and no final order passed‑‑Revision against order issuing notice to accused, held, premature‑‑Revision dismissed Abdul Hussain Sana v. Sawalal Agarwala another P L D 1962 SC 242 ref. Sardar Muhammad Akram for Petitioners. Nemo for the State. Date of hearing: 23rd September, 1984. Muhammad Javid Iqbal and Mst. Parveen Akhtar have filed this petition under section 439 read with section 561‑A, Cr.P.C. against the order, dated 19‑7‑1983:

2. The facts leading to the disposal of the present petition are that Abdul Latif respondent filed complaint against the petitioners under section 10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, in the Court of Sessions Judge, Sheikhupura who sent it to the Illaqa Magistrate for proceedings under the law. Since the case was triable exclusively by the Court of Sessions the Magistrate sent the complaint to the learned Sessions Judge. After recording preliminary evidence, the Sessions Judge issued process against the petitioners. The case was fixed for 19‑7‑1983. The complainant failed to appear on the said date and his complaint was dismissed for non‑prosecution. Abdul Latif filed an application on 19‑7‑1983 for the restoration of the complaint. The Sessions Judge issued notices to the petitioners for 3‑8‑1983

3. On query as to how the present petition was maintainable, the learned counsel for the petitioners submitted that the complaint had been wrongly instituted in the Court of Sessions and the case of the petitioners was badly prejudiced when this complaint was forwarded to the Illaqa Magistrate who without applying his judicial mind again forwarded it to the Court of Sessions. I find little substance in this contention. The Sessions Judge sent the complaint to the Illaqa Magistrate for proceedings under the law as it could not be directly instituted in the Court of Sessions. After taking cognizance, the learned Magistrate sent the complaint to the Court of Sessions. A proper procedure has been adopted in the case and I find no illegality.

4. It was submitted by the learned counsel, for the petitioners that the order of the learned Sessions Judge whereby he issued notices to the petitioners was illegal as there was no provision for the restoration of the complaint. Reliance was placed on case titled Abdul Hussain Sana v. Sawalal Agarwala and another P L D 1962 S C

242. The application of Abdul Latif for restoration of the complaint is still pending and no final order has been passed by the learned Sessions Judge. Only notice has been issued to the present petitioners for contesting the application for restoration of the complaint. The petitioners, if so advised, may contest the application and urge the same point before the learned Sessions Judge. Since no final order has been passed as yet, the petition is premature which is dismissed. M. Y. H. Petition dismissed.