GHULAM .DASTGIR Versus NIAZI
This matter arises from a petition for leave to appeal directed against a judgment of the Baluchistan High Court, which had allowed an application under section 561-A of the Code of Criminal Procedure 1898 and set aside an order of the Additional Sessions Judge restoring a criminal complaint. The petitioner initially filed a criminal complaint under section 323/34 of the Pakistan Penal Code 1860 before a Magistrate, which was referred to a Tribunal under Ordinance II of 1968 and subsequently dismissed for non-prosecution. A second complaint involving additional offences was later filed and dismissed by the Magistrate, leading to revision proceedings and eventual intervention by the High Court. The core legal questions concern the jurisdiction of the High Court under section 561-A of the Code of Criminal Procedure 1898 in areas governed by the Criminal Law (Special Provisions) Ordinance 1968, and the maintainability of a second complaint involving separate offences. The Supreme Court granted leave to appeal, holding that the contentions raised regarding jurisdiction and the maintainability of the second complaint merit consideration.
- Whether the High Court has jurisdiction under section 561-A of the Code of Criminal Procedure 1898 to quash proceedings in an area governed by the Criminal Law (Special Provisions) Ordinance 1968?
- Is a second criminal complaint maintainable when it includes offences different from those alleged in the initial dismissed complaint?
- Section 323, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 406, Pakistan Penal Code 1860
- Section 561-A, Code of Criminal Procedure 1898
1. ABDUL KADIR SHAIKH, J.‑ ‑Facts of this case briefly stated are that petitioner filed a complaint against the respondents under section 323/34, P. P. C. on 7‑7‑1982 in the Court of Assistant Commissioner/ Magistrate First Class, Quetta. As the scene of occurrence where the offence took place was governed under the provisions of Ordinance II of 1968, learned Magistrate referred the case to the Tribunal. As the petitioner failed to appear before the Tribunal, learned Magistrate, on the recommendations of the Tribunal, dismissed the complaint by order dated 10‑2‑1983.
2. The petitioner then filed another complaint against the respondents on 4‑10‑1983 under section 323/420/406 PPC alleging that on the previous occasion respondents had settled the dispute on payment of Rs.800 but thereafter they resiled there from and they were liable for prosecution. The second complaint was also dismissed by the learned Magistrate by order dated 22‑6‑1986. In the circumstances the petitioner challenged this order in revision application in the Sessions Court which was accepted by the learned Additional Session Judge‑1, Quetta by judgment dated 2‑2‑1987. Respondents then challenged this judgment in an application under section 561‑A of the Code of Criminal Procedure in Baluchistan High Court which was allowed by the judgment dated 17‑3‑1987 with the result that the judgment of the learned Additional Sessions Judge‑I, Quetta was set aside. It is in these circumstances that the petitioner now seeks leave to appeal from the judgment of the High Court.
3. In support of the petition it is submitted that since the scene of offence is situated in an area where Criminal Law (Special Provisions) Ordinance No. II of 1968 is applicable, the High Court has no jurisdiction under section 561‑A of the Code to quash the proceedings.
4. It is further submitted that the High Court has failed to notice that the second complaint filed by the petitioner on 4‑10‑1983 was not only with regard to the offence for which the first complaint was filed but also for two different offences, and, therefore, it was quite maintainable in law and cannot be quashed for the reasons which prevailed with the High Court.
5. These and other submissions deserve consideration. We, therefore, grant leave to appeal and allow the petition.
6. Appeal will be heard on the present record but it is open to the parties to file additional documents, if any.
7. M.I./G‑41/S. Leave granted.