ALLAH WADHAYO vs WALI MUHAMMAD and 3 others
This criminal revision application challenges an order passed by the Special Judge, Anti-Corruption, Sukkur, which dismissed the applicant's second direct complaint under Section 203 of the Code of Criminal Procedure 1898. The applicant had previously filed a complaint against the respondents for offences under Section 161 of the Pakistan Penal Code 1860 and Section 5(2) of the Prevention of Corruption Act 1947, which was subsequently withdrawn by the applicant following an amicable settlement. The core legal question was whether a second complaint based on the same facts is maintainable after the withdrawal of the first complaint. The High Court upheld the dismissal, holding that the withdrawal of the previous complaint operated as an acquittal. Consequently, the second complaint was barred under the principle of autrefois acquit, as codified in Section 403 of the Code of Criminal Procedure 1898 and Article 13 of the Constitution of Pakistan 1973. The Court further clarified that a trial court is not legally mandated to conduct a preliminary inquiry before dismissing a complaint if no prima facie case is established.
- Does the withdrawal of a criminal complaint operate as an acquittal?
- Is a second complaint based on the same facts maintainable after the withdrawal of a previous complaint?
- Is a preliminary inquiry a mandatory condition precedent for a trial court to dismiss a direct complaint?
- Section 203, Code of Criminal Procedure 1898
- Section 161, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 200, Code of Criminal Procedure 1898
- Section 403, Code of Criminal Procedure 1898
- Article 13, Constitution of Pakistan 1973
ORDER
1. ' By this criminal revision application, the applicant Allah Wadhayo has assailed the order, dated 29-4-2000 passed by the learned Special Judge, Anti-Corruption, Sukkur whereby the complaint of applicant was dismissed under section 203', Cr.P.C.
2. ' The brief facts of the case are that on 5-5-1998 the applicant filed direct complaint against respondents Wali Muhammad, Akbar Kamboh and Sikandar Ali under section 161, P.P.C. Read with section 5(2) of Act II of 1947. The complaint was brought on record by order, dated 21-8-1998.
3. ' Pursuant to the process issued by the trial Court, the respondents appeared and on 27-9-1999, the complainant withdrew the complaint on the ground that an amicable settlement has taken place between the parties.
4. ' Subsequently, the applicant filed another complaint under the same provisions of law containing same facts except with addition in paragraph 12 to the effect that the respondents have demanded Rs,2,000 as illegal gratification. The trial Court dismissed the complaint by impugned order, dated 29-4-2000. The order is reproduced hereinbelow in extenso:-- ' "Perused the complaint and statement of complainant under section 200, Cr.P.C.
5. ' Prior to this complainant has filed a similar complaint on 5-5-1998, which was brought on record vide order, dated 21-8-1998. The accused persons were served but the complainant on 27-9-1999 withdrew his complaint on the ground that they had entered into a compromise.
6. ' The present complaint accordingly is dismissed under section 203, Cr. P.0 . "
7. The perusal of the order reproduced hereinabove clearly shows that it is just, proper and does not suffer from any illegality or impropriety, nor requires any interference. The applicant was debarred from filing the IInd complaint. The withdrawal of case operates acquittal. Thus, the second complaint on same facts is not maintainable under section 403, Cr.P.C. As well as Article 132 of the Constitution of Islamic Republic of Pakistan (1973) so also on the principle of (autrefois acquit autrefois convict).
8. ' The contention of the learned counsel that the trial Court dismissed the complaint without holding preliminary enquiry is misconceived. It is not the requirement of law that the Court on receipt of a direct complaint must hold preliminary enquiry. If a prima facie case is made out, Court can take cognizance of the same after examining the complainant on oath and if no prima facie case is made out, Court is competent to dismiss the same. The preliminary enquiry is meant to ascertain the truth or otherwise of the facts disclosed in the complaint. For dismissal or taking cognizance, preliminary enquiry is not condition precedent.
9. ' The criminal revision application stands dismissed in limine.
Cited by 3 cases
- MUHAMMAD PUNHAL vs Dr. ABDUL WAHID ABBASI and anothers 2003 P Cr. L J 578
- AZMAT BIBI and another vs ASIFA RIAZ and 3 others 2002 PLD Supreme Court 687
- AZMAT BIBI and anothers vs Mst. ASFA RIAZ and 3 others 2002 YLR 401