1993 P Cr (PLP)

The present criminal revision petition has been preferred against the order, dated 11-1-987, passed by the Additional Sessions Judge, Sialkot, whereby the petitioners have been summoned in a complaint case filed by respondent No.2 under the provisions of section 307/324/148/149, P.P.C. read with sections 11 hand .18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979,

2. The brief facts, necessary for the disposal of the present criminal revision petition, are as follows:-- "That respondent N6.2 had filed complaint in question before the learned trial Court, whereupon, after recording the preliminary evidence of the P.Ws., the Court had summoned the petitioners vide the impugned order dated 11-1-1987, observing that, prima facie, case. is made out and had issued warrants of arrest in the sum of Rs.10,000, Admittedly, an earlier complaint in respect of the same occurrence and under the same offences had been filed, and withdrawn by respondent No.2 on 21-9-1986, on the ground that the parties had effected a compromise.

2. The learned counsel for t re petitioners assailed the impugned order, inter alia, on the ground that as the withdrawal of the earlier complaint has resulted in the acquittal of the petitioners in accordance with the provisions of section 248, Cr.P.C., therefore, they cannot be subjected to trial for the same offences by a fresh complaint by the same complainant/respondent No.2 in view of the bar coined in subsection (1) of section 403, Cr.P.C.

3. On the other hand, the learned counsel or the respondent No.2 contended that as the accused-petitioners were not present before the trial Court, when the earlier complaint was withdrawn on 21-9-1986, therefore, there is no bar to the trial in pursuance of a fresh complaint in respect of the same offences that form part of the earlier complaint; and to support the case referred to the provisions of section 203, Cr.P.C. and placed reliance upon Muslim Miah v. Munsar Ali Haji and 6 others 1969 P Cr. L J 849 and Dhanpati Devi v. The Corporation of Calcutta A I R 1.952 Cal.

467. However, the argument advanced by learned counsel for respondent No.2 is totally irrelevant, as the withdrawal/dismissal of the earlier complaint had not taken place under the provisions of section 203, Cr.P.C. and, as such, the first precedent relied upon does not apply, as it deals with a case under section

203. Cr.P.C., whereas the second precedent is not in respect of criminal proceedings under the Cr.P.C.

4. Whereas, a perusal of the impugned order clearly establishes that the learned trial Court had passed the said order for summoning of the petitioners without taking into consideration the dismissal of the earlier complaint: Furthermore the dismissal of the earlier complaint, on withdrawal by the complainant respondent No.2, falls under the provisions of section 248, Cr.P.C. which is as follows:-- "If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused." The perusal of the above section makes it clear that a withdrawal of the complaint on the satisfaction of the Court results in the acquittal of the accused; and such an acquittal bars the retrial of the acquitted accused in accordance with the provisions of subsection (1) of section 403, Cr.P.C. as contended by the, learned counsel for the petitioners. A perusal of the said section leaves no doubt about the relevancy of the said contention, and for reference it is being reproduced hereinbelow:-- "Section 403.

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he, might have been convicted under section 237."

5. Therefore, pursuant to the above discussion, as the acquittal of the petitioners vide order, dated 21-9-1986 whereby, earlier complaint in respect of the same offences as is the subject-matter of the instant complaint remains in force, the impugned order, dated 11-1-1987 is not sustainable in law and is hereby set aside, and the present criminal revision petition is accordingly allowed and disposed of. N.H.Q./M./779/L Revision accepted.