NAZAR AHMAD Versus MUHAMMAD ASLAM

On 7‑9‑1986 Nazar Hussain petitioner filed complaint under section 302/120‑B, P.P.C. against Muhammad Aslam, Khalid Hussain and Muhammad Siddique respondents, in the Court of Magistrate 1st Class, Bahawalpur. The Magistrate sent up the case to the Court of Sessions. The case was entrusted to the learned Additional Sessions Judge, Bahawalpur who after recording the statement of the complainant, directed an enquiry under section 202 by Magistrate 1st Class, Bahawalpur. The learned Magistrate recorded the statements of three witnesses and before he could send his report to the learned Additional Sessions Judge, Nazar Hussain complainant filed application before the learned Additional Sessions Judge praying for the withdra wal bf the case. On this the learned Additional Sessions Judge recorded the statement of the complainant wherein he stated Istigasa zair e samat say dastbardar hota hoon Thereafter the learned Additional Sessions Judge passed following orders:

Hence this revision. The 4earned counsel for the appellant contended that the complaint could ‑not have been dismissed as having been withdrawn on the statement of the complainant, under the law. Learned counsel for the respondent relied on Dogar Singh v. Budha Singh and others A I R 1933 Lah. 323 and Mehar Singh v. Emperor A I R 1933 Lah. 884 to contend that the learned Additional Sessions Judge had rightly dismissed the complaint. He was of the view that since the complaint was at the initial stage and accused therein had not been summoned to face trial, therefore, there was no legal bar to the withdrawal of the complaint at that stage.

2. I have considered the submissions made by the learned counsel for the parties with care. I do not feel persuaded to agree with the learned counsel for the respondent. ,I feel that the withdrawal of the complaint on the statement of the complainant was not justified by the provisions of Cr.P.C. The relevant law may be reproduced advantageously section 248, Cr.P,C.:‑

"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."

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 XVI1 of Cr.P.C. and was not triable as a summons 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.

3. In pursuance of the above discussion, the order, dated 22‑12‑1986 of the dismissal of the complaint as having been withdrawn is set aside. Resultantly the complaint is sent back to the Additional Sessions Judge, Bahawalpur for proceeding in accordance with law:

M.Y.H./N‑148/L Case remanded.