2006 PLP 26 (YLR)

IJAZ AHMAD CHAUDHRY, J.--At the very outset of the arguments the learned counsel for respondents has pointed out that respondent No.3 was not summoned by the learned Special Judge, Anti-Corruption, D.G. Khan camp at Muzaffargarh to face the trial vide order dated 16-6-2003 and he has been wrongly impleaded as party in the instant revision petition. The contention raised by the learned counsel is borne out from the perusal of the aforesaid order. As such the name of respondent No.3 is directed to be deleted from the array of respondents. Now this case shall be taken up on behalf of respondents Nos.1 and 2 who were only summoned to face the trial in the private complaint filed by the petitioner.

2. Respondent No.2 has not turned up even direction was issued to the D.P.O., Muzaffargarh vide order dated 8-6-2005 to ensure his presence today in this Court. It appears that he is not interested in the defence of this petition. Hence he is proceeded against ex parte.

3. Through this revision petition the petitioner challenges order dated 12-1-2005 passed by the learned Special Judge, Anti-Corruption, D.G. Khan (Camp at Muzaffargarh) whereby the private complaint filed by the petitioner against the respondents has been dismissed for non-prosecution.

4. Briefly the facts of the case are that the petitioner filed a private complaint alleging that he was illegally arrested by respondents Nos.1 and 2 on 10-3-2003 from the Katchehry, but his arrest was shown on 14-3-2003 which even was changed to 15-3-2003 later on. The learned trial Court after conducting the inquiry required under section 202, Cr.P.C. issued process against respondents Nos.1 and 2 only to face the trial, but the said private complaint has been dismissed for non-prosecution through the impugned order. Hence this revision petition.

5. The petitioner states that even the respondents had not entered appearance in the Court and the private complaint could not be dismissed for non-prosecution. It is further stated that he had been pursuing the private complaint for the last 15 months, but could not appear in the Court on 12-1-2005 due to misconception of date and that the staff of the learned Presiding Officer had also given wrong information to him that due to the transfer of him the trial of the private complaint would be held before the learned Special Judge, Anti-Corruption, Multan.

6. On the other hand learned counsel for respondent No.1 has contended that the private complaint is not maintainable as under section 417, Cr.P.C. the petitioner could file PSLA. Further contends that the private complaint was filed with mala fide intention and ulterior motive only to pressurize the respondents, who are police officials and the petitioner is criminal bent of mind.

7. Heard. I am not in agreement with the learned counsel for respondents that this Criminal Revision due to the provisions of section 417, Cr.P.C. which provides remedy of PSLA is not maintainable as through the impugned order the private complaint was only dismissed for non-prosecution and same cannot be termed as acquittal of the respondents-accused from the charges on merits. Admittedly, the respondents did not appear before the learned trial Court after issuance of process to face the trial against them. It is settled principle of law that once the accused are summoned to face the trial after having formed the opinion that sufficient grounds for proceeding with the private complaint had been made out, it could not be dismissed for non-prosecution as it becomes a State case. Reliance is placed on 1995 PCr.LJ 1995. As such the impugned order dismissing the private complaint for non-prosecution having been passed without lawful authority cannot be sustained in the eye of law, which is set aside and the case is remanded to the learned trial Court for further proceedings in accordance with law. I have intentionally not commented upon merits of the case lest it may prejudice the case of either party during the appropriate proceedings as here the point was only involved that whether the private complaint could be dismissed for non-prosecution or not.

8. This revision petition stands accepted. However, it is directed that if the respondents-accused move application under section 249-A, Cr.P.C. before the learned trial Court, that shall be decided on its own merits. N.H.Q./I-112/L?????????????????????????????????????????????????????????????????????????????????? Revision accepted.