HUSSAIN Versus ASIAT (MST.)
1. This Criminal Miscellaneous Application has been riled challenging the orders passed by the learned Sessions Judge, Dadu in Cr.R.A. No. 2 of ,1988.
2. Briefly the facts are that the present respondent No.1 had filed a direct complaint against the present applicant and others with regard to removal of her children from her custody. However, process under sections 342 and 343, P.P.C. was issued but subsequently on complainant's remaining absent the complaint was dismissed by the Civil Judge and F.C.M. Dadu vide orders passed on 2‑11‑1988 and by the same order the present applicant and other co -accused were acquitted.
3. Being aggrieved from the said order the present respondent No.1 filed the above‑said Criminal Revision application before the Sessions Judge, Dadu which was allowed by orders passed on 15‑5‑1989 whereby the order of acquittal was set aside and the case was remanded for trial according to law.
4. Being aggrieved the present applicant has challenged the said order of the learned Sessions Judge Dadu in this Criminal Miscellaneous Application.
5. Mr. Ahmed Khan Barakazi learned counsel for the applicant has supported that the order of the learned Sessions Judge is without jurisdiction under the provisions of section 439(5), Cr.P.C. He could not have passed this order for the reasons that the acquittal appeal under section 417(2), Cr.P.C. was maintainable. There is no cavil about this proposition of law to which Mr. 1A S. Riaz Ahmed appearing for the State and Mr. Syed Madad Ali Shah for the respondent No.1 have candidly conceded. 1n this view of the matter the orders passed by the learned Sessions Judge, Dadu could not have been maintained. However, there is another aspect of the case which has been highlighted by the learned counsel to the effect that the initial order passed by the learned Civil Judge and F.C.M. Dadu on 2‑11‑1988 by itself is an order without jurisdiction as under the provisions of section 247, Cr.P.C. he could not have passed such orders. The provisions of section 247, Cr.P.C. are re‑produced hereunder for the sake of convenience.
6. "S.247 ‑Non‑appearance of complainant :‑‑If the summons has been issued on complaint and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless for some reasons he thinks proper to adjourn the hearing of the case to some other day:
7. 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:
8. Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non- compoundable."
9. Mr. S. Madad Ali Shah learned counsel for the respondent No. 1 has placed reliance on the case of Mushtaq Hussain Shamsi v. The State 1985 PCr.LJ535. No doubt the order of the Sessions Judge being illegal could not be sustained but at the same time it has been. brought to the knowledge of this Court that the initial order passed by the Civil Judge and F.C.M. Dadu itself was an order contrary to the provisions of section 247, Cr.P.C. and therefore the same cannot be allowed to remain in field and under inherent powers under section 561‑A, Cr.P.C. this Court could strike down the said order. In the above‑cited case of Mushtaque Hussain Shamsi, Abdul Razzak Thahim, J (as his Lordship then was) has observed as under:‑‑
10. The legal position, so far revisional jurisdiction of High Court is concerned, is very clear that when. alternate remedy by way of appeal is available, the revision could only be filed on the point of law when gross miscarriage is committed. In these circumstances I fully agree with Mr. Iftikhar Javed that ordinarily the Sessions Judge is not competent to set aside the order of acquittal while exercising revisional jurisdiction as contemplated under Section 439‑A, Cr.P.C. But now it is to be seen whether order passed under Section 247, Cr.P.C. without framing any charge or recording any evidence, amounts to an acquittal.
11. In the above‑reported case which provide guidance it is clear that this order of acquittal passed by the Additional City Magistrate under section 247, Cr.P.C. when the case has not proceeded, charge was not framed cannot be termed as acquittal, and ab initio the order of acquittal passed by the City Magistrate is illegal and liable to be set aside."
12. In view of the above facts and the case‑law I am of the view that the said order passed by the Civil Judge and F.C.M. being an illegal order also cannot be maintained and has to be set aside. The upshot of the above C discussion is that the order of the Civil Judge and FCM Dadu stands set aside and the case stands remanded to the original Court for trial in accordance with law.
13. With these observations this Cr.Misc. Application stands disposed of with no order as to costs.
14. N.H.Q./H‑326/K Case remanded.