1992 P Cr (PLP)

The brief facts giving rise to the petition filed under section 561‑A, Cr.P.C. seeking quashment of the proceedings in a complaint case are as follows:‑‑ That the petitioners were proceeded against on the basis of a private complaint and eventually; the learned Senior Civil Judge at Bhakkar exercising the powers of Magistrate Section 30, summoned the petitioners under the F provisions of sections 323 and 324 of the Pakistan Penal Code. On a subsequent date, since the complainant was absent, therefore, the complaint was dismissed under section 247, Cr.P.C. After the dismissal of the complaint, the complainant filed a fresh complaint on the basis of which, process was issued. Grievance has been made out of this order and it is prayed that the fresh proceedings on the basis of a complaint operate as a bar as envisaged under section 403, Cr.P.C. It is further contended that while dismissing complaint, the learned Magistrate, had acquitted the petitioners and, therefore, once acquitted, they cannot be tried again. After careful consideration of all the aspects of the case and after hearing the learned counsel for the parties, I am not impressed by the argument advanced by the learned counsel for the petitioners. The provision of section 247, Cr.P.C. reads as under:‑‑ "If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto on which the hearing may be adjourned, the complainant does not appear, the `Magistrate shall, notwithstanding anything` hereinbefore contained, acquit the accused, unless for some reason, he thinks proper to adjourn the hearing of the case to some other day: Provided that, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance and proceed with the case: Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non -compoundable. The proviso clearly shows that if an offence is either cognizable or non‑compoundable, then fresh complaint can be initiated. The offence under C section 323, P.P.C. is compoundable as well as non‑cognizable whereas the offence under section 324, P.P.C. is cognizable but non‑compoundable. In this view of the matter, since the proceedings were initiated under sections 323 and 324, P.P.C., therefore, nothing contemplated under section 247, Cr.P.C. would operate as bar for summoning the petitioner in the p proceedings initiated on the basis of a fresh complaint and dismissal of the complaint as envisaged under section 247, Cr.P.C. cannot be considered as acquittal within the meaning of section 483, Cr.P.C. because section itself caters for the explanation to the section 247, Cr.P.C. which reads as under:‑‑ "Section 403, Cr.P.C Explanation.‑‑‑ The dismissal of a complaint, the stopping of proceedings under section 249 or the discharge of the accused is not acquittal for the purposes of this section." The learned counsel has placed reliance upon the judgment reported as Hassan Muhammad v. Muhammad Nazir Khan and others P L D .1975 AJ&K

120. I have perused this judgment. The facts are distinguishable and are not applicable to the facts of the instant case. It has also been agitated that the process in the complaint has been issued under the Qisas and Diyat Ordinance, 1990. This, of course is objectionable because provisions of section 338‑H of the Ordinance, 1990, E would not apply to the offence committed before promulgation of Ordinance and the petitioners are to be tried under the law prevalent at the time of the commission of offence. It is thus obvious that the petitioners can only be summoned under sections 323 and 342, P.P.C. The learned Magistrate shall proceed accordingly. With these observations, this petition is dismissed S.A./M‑115/L Petition dismissed.