2016 P Cr (PLP)

SADAQAT ALI KHAN, J.

The instant Criminal Revision No.09 of 2014 has been filed by the present petitioner against the order dated 16.12.2013 passed by learned Additional Sessions Judge, Rahimyar Khan, according to which private complaint filed by the present petitioner was dismissed due to non-submission of certified copies within three days.

2. Learned counsel for the petitioner has submitted that the present petitioner has filed a private complaint for the murder of her husband Muhammad Yousaf against accused Muhammad Khalid and Muhammad Yaqoob in the trial Court are after cursory evidence produced by the present petitioner, learned Additional Sessions Judge, Rahimyar Khan issued the process for summoning of the above said accused on 02.12.2013 to face the trial of the complaint case and also directed to furnish two sets of certified copies of the complaint and cursory evidence for its delivery to the accused persons as required under section 265-C, Cr.P.C. within three days and in case of failure, the instant complaint shall be deemed as dismissed. It is submitted that the impugned order of the trial Court is against law and facts. It is submitted that section 204(3) of Cr.P.C. has been wrongly interpreted by the learned trial Court while dismissing the private complaint of the present petitioner and lastly prayed for setting aside the impugned order of the trial Court.

3. On the other hand, learned DPG conceded the legal point and submitted that the order passed by the trial Court of dismissing the private complaint due to non-submission of certified copies of complaint and cursory evidence in view of section 204(3), Cr.P.C. is illegal and is liable to be set aside.

4. On the last date of hearing, notices were issued to respondents Nos.1 and 2 but they have not put their appearance before the Court today, so I proceed to decide the instant petition as only a short legal point is involved in the instant criminal revision petition.

5. I have heard the learned counsel for the petitioner as well as DPG and perused the record.

6. Admittedly, on 02.12.2013, learned trial Court after production of cursory evidence by the present petitioner and hearing the arguments, issued the process for summoning of the accused for 16.12.2013. The relevant paragraph No.4 of the order is reproduced as under:- "Although Mst. Zubaida complainant is facing trial of murder of deceased Muhammad Yousaf but she has brought on record copy of FIR No.411/11 registered under section 376/511, P.P.C. against respondent No. I/ accused Muhammad Khalid, due to which, prima facie, it could be said that there was motive with Khalid for causing the murder of Muhammad Yousaf deceased. Furthermore, complainant Zubaida Bibi has brought on record copy of FIR No47/12 as Mark-B in her cursory evidence. Perusal of the same shows that said FIR was registered by Rehmat Ali i.e. brother of the deceased Muhammad Yousaf against Muhammad Khalid and Yaqoob i.e. respondents mentioned in the instant complaint, therefore, in humble view of this Court, story narrated by the complainant in the instant complaint is actually the story narrated by Rehmat Ali complainant of the FIR No.47/2012 which was registered regarding the murder of deceased Yousaf by his brother on the very first day). Furthermore, the story narrated by the complainant Mst. Zubaida Bibi has been supported by the PWs (produced by her) in the cursory evidence. In these circumstances, prima facie, complainant has succeeded to make out a case for summoning of respondents as accused persons to face the trial of this complaint case, therefore, respondents Nos.1 and 2 be summoned for 16.12.2013 as accused persons to face the trial of this complaint case. The complainant is directed to furnish two sets of certified copies of complaint and cursory evidence for its delivery to the accused persons as required under section 265-C, Cr.P.C. within three days and in case of failure, the instant complaint shall be deemed as dismissed".

7. Thereafter on non-submission of the certified copies of the complaint as well as cursory evidence, learned trial Court dismissed the private complaint of the petitioner in view of section 204(3), Cr.P.C. which is reproduced as under for ready reference: "When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the (Court) may dismiss the complaint."

8. Learned trial Court wrongly interpreted the provision of 204(3), Cr.P.C. as nowhere it is mentioned that private complaint shall be dismissed due to non-submission of the certified copies of complaint/cursory evidence for providing the same to the accused rather it is mentioned that process fees or other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the Court may dismiss the complaint and there is nothing in the statute to empower the Court to dismiss private complaint an account of failure of the complainant to provide copies of the documents/cursory statements to the accused persons under section 265-C, Cr.P.C. The order of learned trial Court is illegal and perverse, hence the criminal revision petition is allowed and the impugned order dated 16.12.2013 is set aside and the private complaint of the present petitioner is deemed to be pending before trial Court. Learned trial Court is directed to decide the same on merits in accordance with law. HBT/Z-18/L Petition allowed.