GHULAM DASTGIR vs NIAZI And Other

1. ABDUL KADIR SHAIKH, J.---This appeal by leave is directed against the judgment of Baluchistan High Court dated 17th March, 1987 allowing an application under section 561-A of Criminal Procedure Code filed by respondents 1 to 4 by which they sought quashment of the proceedings directed to be held by the order of the Additional Sessions Judge dated 2nd February, 1987 passed in a revision application under section 439 of the Code of Criminal Procedure filed by respondents.

2. The facts of the case briefly stated are that appellant filed a complaint against respondents under section 323/34, P.P.C. On 7th July, 1982 in the Court of Assistant Commissioner/Magistrate First Class, Quetta. Learned Magistrate after taking cognizance of the offence proceeded with the case but finally dismissed the complaint by the order dated 10th February, 1983 and acquitted the accused on the ground that the appellant had failed to produce any witnesses in support of the charge against the accused.

3. The appellant then filed another complaint against the respondents on 4th October, 1983 under sections 323, 406, 420 alleging that he had not prosecuted the complaint as the accused had paid him Rs.800 but soon thereafter they took back the money misrepresenting that they would pay the same in the Court. The learned trial Magistrate however, dismissed this complaint by the order dated 22nd June, 1986 on the ground that his previous complaint having been dismissed, another complaint was incompetent Appellant being aggrieved against this order filed a revision application which was allowed by the Additional Sessions Judge-I Quetta, by the judgment dated 2nd February, 1987 on the ground that the first complaint not having been decided on merits, the second one filed by the appellant was competent, and on this view of the case he directed the trial Court to try the case de novo. It was against this judgment that respondents filed the application under Section 561-A, Cr.PA. For quashment of the proceedings which was allowed by the impugned judgment of the High Court.

4. Leave to appeal was granted by this Court, inter alia, on the ground that the High Court has failed to notice that the second complaint filed by the appellant on 4th October, 1983 was not only with regard to the offence mentioned in the first complaint but also for two different offences, and therefore it was maintainable in law, and could not have been dismissed on the ground that prevailed with the learned trial Judge.

5. We have heard the appellant and respondent-I who are present in person, and also Raja M. Afsar, learned counsel appearing for the State. It is obvious that the second complaint was not restricted to the offences for which the first complaint had been filed, and that a second complaint should have been therefore dealt with in accordance with the provisions of section 202, Cr.P.C, Learned counsel appearing for the State is also of the same view. For these reasons the impugned judgment of the High Court is set aside. However, we find that the learned Additional Sessions Judge also fell in error in directing the trial of the entire case, including under section 323 of which the respondents were acquitted by the order dated 10th February, 1983, they therefore could not be tried for the second time for the same offence. We accordingly hereby clarify that the trial Magistrate will deal with the second complaint filed by the appellant on 4th October, 1983 with respect to offences under Sections 420, 406, P.P.C only.

6. The appeal accordingly succeeds and is allowed with the directions above.