2008 PLP 2824 (YLR)

This revision petition is preferred by the applicant against the impugned order, dated 13-7-2007 passed by the Special Court (Offences in Banks) Karachi in Complaint No.32 of 2006. Undisputed facts giving rise to the controversy are that a complaint was filed after preliminary enquiry, it was registered under sections 419/420/409, P.P.C. against applicant. Consequent thereupon, bailable warrants were served upon applicant who had appeared before the trial Court and furnished surety. On 6-4-2004 trial Court had framed charge against applicant and set up the case for recording the evidence of complainant. On 6-7-2007 when the matter was fixed for the statement of respondent and his witness the complaint was dismissed under section 247, Cr.P.C. Consequent upon filing of application by the counsel for the complainant, order of dismissal of the complaint was set aside and the complaint was restored to its original stage for proceeding on merits. Mr. Khaleeq Ahmed learned counsel for applicant contends that the impugned order is without jurisdiction, after dismissal of the complaint for non-prosecution in the absence of the complainant it could not be restored. At the best the complainant ought to have proceeded to file fresh complaint against applicant as no appeal is provided in terms of section 417(2), Cr.P.C. nor revision can be filed against the order regarding dismissal of the complaint in absence of complainant. Learned counsel appearing for the respondent has primarily contended that revision petition is not sustainable in law as after realizing the facts that order of the dismissal of complaint was coram non judice the trial Court has rightly restored the same to its original position, in consonance with law. Mr. M. Sarwar Khan learned Addl. A.-G. appearing for the State has contended that second proviso to section 247, Cr.P.C. indicates that nothing in the said section shall apply whether offence in which the accused is charged, either cognizable and compoundable. It is next that after registration of the complaint the trial Court was not competent to dismiss the same for non-prosecution in absence of complainant, at the best allegation levelled against applicant ought to have been thrashed out on the basis of evidence after being recorded during trial. We have considered arguments advanced at Bar. Undoubtedly, learned trial Court has resorted to dismiss the complaint for non-prosecution, the impugned order itself is perverse and without jurisdiction, error, if any, can be rectified by the Court in exercising of its revisional jurisdiction as held in cases reported in PLD 1996 Peshawar 103, 2003 SCMR 59 and 2003 YLR 2211 (Lahore). On enquiry into complaint, prima facie, a case was made out, accused was summoned. Second proviso to section 247, Cr.P.C. lays down that the complaint shall not be dismissed in absence of complainant and accused cannot be deemed to be acquitted after he is charged with cognizable and non-compoundable offence as held in case of Zahoor and another v. Said-ul-Ibrar and another supra. A very strong exception for dismissal of the complaint was taken and the order was declared to be patently illegal, void ab initio and without jurisdiction, therefore, we are of the considered view that the course adopted by the trial Court by way of exercising inherent jurisdiction per se would not require any interference at this stage. The plea raised by the learned State Counsel also finds support from sec tion 21 of the General Clauses Act, 1897. It would be futile to remand the case at this stage and/or call upon the complainant to file fresh complaint, against the accused/applicant. The better way to resolve the problem was to set aside the impugned order and to restore the complaint to its original position. We, therefore, direct the trial Court to expedite the case and dispose of the same on merits. In view what has been discussed above, Criminal Revision Application No.129 of 2007 is hereby dismissed along with listed application. H.B.T./M-138/K Petition dismissed.