2012 P Cr (PLP)

ABDUL WAHEED KHAN, J.

Petitioner/complainant filed a complaint under sections 3/4/8 of the Illegal Dispossession Act 2005 wherein after recording of the cursory evidence the respondents Nos.1 and 2 were summoned to face trial vide Order dated 5-7-2006. Thereafter the said respondents put appearance before the trial court and vide order dated 15-8-2006, the Additional Session Judge, Rawalpindi dismissed the complaint as the complainant failed to provide the copies of cursory statements of the P.Ws. to the accused persons. A revision petition filed by the petitioner/complainant was dismissed vide order dated 28-11-2006 with an observation that the petitioner may challenge the impugned order by filing a Constitutional Petition, hence this petition.

2. The contentions of the counsel for the petitioner are that there is no provision of law empowering the trial court to dismiss the complaint particularly when the same was admitted for regular hearing and the accused persons were summoned to face trial.

3. Conversely, the contentions of the counsel for respondents No.1 are that the controversy between the parties has been resolved through civil litigation and at present there is no alive issue.

4. Arguments heard, record perused. The admitted position is that after recording of cursory evidence of the complainant the accused were summoned to face trial vide order dated 5-7-2006 and in pursuance of the said order the accused persons entered appearance before the trial court but the trial court through the impugned order dismissed the complaint in the following words:-- "The accused persons have submitted bail bonds. The complainant was ordered to deliver the copies of the complaint and preliminary statements of the complainant and the other material to the accused persons within three days on the last date of hearing. Despite expiry of almost a month, the said order has not been complied with. The supply of the copies within three days of the order of the Court under section 204, Cr.P.C. is a mandatory provision as required under section 265-C(2), Cr.P.C. The complainant is not even able to provide the copies as required under the law, to the accused persons today. This complaint, therefore, cannot be proceeded further, the same is, therefore dismissed. File be consigned to the record room after its due completion".

5. There is nothing in the statute book empowering the Court of Session to dismiss a private complaint on account of failure of the complainant to provide copies of the documents/cursory statements to the accused person under section 265-C(2), Cr.P.C. A private criminal complaint can be dismissed at the preliminary stage under section 203 and subsection (3) of section 204, Cr.P.C. which are reproduced hereunder:-- Section 203. "The court before whom a complaint is made or to whom it has been transferred or sent may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry if any under section 202 there is in his judgment no sufficient ground for proceeding in such case he shall briefly record his reasons for so doing." Subsection (3) of section 204, Cr.P.C. "(1) .............................................. (2) .............................................. (3) Nothing in this section shall be deemed to affect the provision of section 90. (3) 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".

6. An accused can also be acquitted and private complaint can be dismissed by the Sessions Court at any stage of the trial under section 265-K, Cr.P.C. and under subsection (1) of section 265-H, Cr.P.C. of which are reproduced as under:-- Section 265-K, Cr.P.C. "Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case; if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of an offence." Subsection (1) of section 265-H, Cr.P.C. "(1) if any case under this Chapter in which a charge has been framed the Courts finds the accused not guilty, it shall record an order of acquittal".

7. There is no other provision of law empowering the Court of Session to dismiss the private criminal complaint and to acquit the accused person for failure of the complainant to supply copies of the cursory statement of the P.Ws. and the documentary evidence. Therefore, the Additional Sessions Judge has erroneously dismissed the complaint through the impugned order. This being so, the impugned order dated 15-8-2006 is set aside and the matter is remanded to the trial Court for its decision afresh on merits strictly in accordance with law. M.W.A./T-41/L Petition allowed.