ALLAH DITTA and 5 others vs THE STATE and anothers

ORDER

Through this revision petition made under section 561-A of the Cr.P.C, the order dated 11-10-1999 passed by the learned Sessions Judge, Lodhran has been questioned.

2. Respondent Mst. Raj Mai had filed a private complaint against the petitioners before the Judicial Magistrate, Dunyapur, District Lodhran. Who after conducting an enquiry summoned the petitioners as accused under section 452/337/-A/337-F(i)/148/149 of the Pakistan Penal Code. On 15-7-1999 Mst. Farzana, one of the accused, did not appear in the Court while the complainant too, was absent when he passed an order of acquittal. The order reads as follows:-- {{URDU TEXT}}

3. The matter was taken in revision before Mr. Aziz-ur-Rehman Khan, learned Sessions Judge, Lodhran. Who came to the conclusion that as the accused had been summoned in a case which was cognizable but was not compoundable being offences under section 452/337-A/337- F(i)/148/149, P.P.C. And as such he had no powers to acquit the accused under section 247 of the Criminal Procedure Code.

4. Section 247 of the Cr.P.C. Reads as follows: "247. Non-appearance of complainant.--- If the summons has been issued to complainant, 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 Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day: Provided, 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; Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non-compoundable."

5. The main argument of the learned counsel for the petitioner before this Court was that since the Magistrate had passed an order of acquittal, a revision was not sustainable. Whereas the petitioners ought to have gone in appeal under section 417 of the Cr.P.C.

6. This was not a case of acquittal on merits but an acquittal because of the absence of the complainant and it had to be seen whether the law which was used for purposes of such an order permitted the Magistrate to pass an order of acquittal under the circumstances. Even otherwise, the learned Sessions Judge was not converting an acquittal into an order of conviction but had merely returned the case for re-trial. The learned Sessions Judge was competent in doing so either suo motu or on the basis of the facts coming to his knowledge through a revision petition. This Court, thus, finds the present application filed under section 561-A, Cr.P.C. Having no merits in it. It is, therefore, dismissed.