BASHIR AHMED vs AKBAR and others

1. ' None is present for the applicant. Respondent No,2 is present in person while respondent No,1 is said to have been transferred to Larkana District. Accordingly I condone his absence and direct the revision application to proceed in his absence.

2. Mr. Abdul Ghani Shaikh, A. A.-G. Is present on behalf of the State and I have proceeded to hear the case with the assistance of Mr. Shaikh and the respondent No,2. Briefly the facts relevant for the purposes of this revision application are that present applicant had filed a direct complaint under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and after recording the statement of the complainant and witnesses the trial Court was pleased to order the process to issue under the abovesaid sections on 19-6-1991. Thereafter, the impugned order was passed on 2-5-1992 to the effect that the complaint is dismissed under section 203, Cr.P.C. For the reasons that the complainant and his witnesses had not been attending the Court since three previous dates of hearing. It is against this order that the present revision has been filed.

3. ' The point which requires consideration in the present case is as to whether the trial Court could have exercised the jurisdiction under section 203, Cr.P.C. In the present case. Section 203, Cr.P.C.

4. Reads as under:--- "203. Dismissal of complaints.---The Court before whom a complaint is made or to whom it has been transferred, or sent may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under section 202 there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing."

5. ' The above provision shows that a complaint can be dismissed by the Court before whom such complaint is made only in case the said Court after considering the statements on oath of the complainant and the result of investigation or inquiry under section 202, Cr.P.C. Comes to the conclusion that no sufficient grounds for proceedings have been made out. In the present case the order passed on 19-6-1991 would show that the trial Court was of the opinion that sufficient grounds for proceeding with the case had been made out and therefore the process was ordered to issue. In this view of the matter the trial Court could not have exercised the jurisdiction under section 203, Cr.P.C. By dismissing the complaint.

6. ' However, in such case the provision available to the trial Court in a Sessions case was as contained in section 265-H or 265-K, Cr.P.C. Which also provides that before passing such an order an opportunity of being heard is to be given to the prosecutor as well as to the accused. In this view of the matter I allow this revision application, set aside the impugned order passed on 2-5- 1992 and remand the case to the trial Court to proceed in accordance with law.