2005 PLP 1011 (MLD)

Date of hearing: 11th February, 2004. This criminal revision is directed against the order dated 11‑7‑2003 passed by the Addl. Sessions Judge Lahore vide which learned Judge seized of the trial of the private complaint filed by petitioner/complainant under sections 302/324/148/149, P.P.C. dismissed the complaint as having been withdrawn.

2. Facts in brief are that petitioner filed the afore‑referred complaint against 12 persons. After recording of preliminary evidence the learned trial Court issued notice to them. They appeared, they were allowed bail. Charge was framed but thereafter they absconded and it is alleged that some of the respondent accused had murdered one of the prosecution witnesses and therefore, they became fugitive to law in the instant complaint. The case was fixed for recording of, evidence, when the impugned order was passed.

3. Learned counsel for the petitioner submits that petitioner/complainant never made a statement to withdraw complaint, that her thumb‑impressions were obtained on the pretext that the same were required for adjourning the case, that even otherwise it was a warrant case and the learned trial Court could not have permitted C withdrawal, event if the complainant had made a statement to that effect. Reliance was placed by the learned counsel on a judgment of this Court reported Nazir Ahmad v. Muhammad Aslam and others (PLJ 1989 Cr.C (Lahore) 226):

4. Learned State counsel to be fair to him did not oppose this petition as according to him the charge had been framed, the case was fixed for evidence the accused had became fugitive to law and even otherwise it was highly doubtful that the complainant made any Statement for the withdrawal of the complaint.

5. Heard.

6. The statement of petitioner/complainant was not recorded in her own language. Her thumb‑impressions were obtained on the blank paper. Even if those had been obtained on the impugned order the said order was in English and the complainant being an illiterate woman who could not even sign was not expected to read or understand the order. Furthermore the learned trial Court could not have permitted withdrawal in view of the law laid down in 1988 PCr.LJ 1787 wherein at page 227 it was held as under:‑‑ "It may be noted here that there is no other section in Cr.P.C. enabling the withdrawal of a complaint. An examination of the aforesaid provision of law shows that a complaint in‑ summons cases triable under Chapter XX can only be withdrawn with the permission of the Magistrate. Since the instant case was at the stage of proceedings in Chapter XVI of Cr.P.C., and was got triable as a summon case under Chapter XX of the Cr.P.C., therefore, the learned Additional Sessions Judge had no authority to permit the complainant to withdraw the complaint or to dismiss it as having been withdrawn".

7. For what has been discussed above, the impugned order is not sustainable, the same is set aside and petition is allowed. Petitioner is directed to appear before the learned trial Court on 23‑2‑2004. H.B.T./.W‑31/L Petition allowed.