GHULAM HUSSAIN vs THE STATE
This criminal revision application challenged an order passed by the Special Judge, Anti-Corruption, Sukkur, which restored a direct complaint that had previously been dismissed for non-prosecution. The core legal question was whether a trial court possesses the jurisdiction to restore a direct complaint involving cognizable and non-compoundable offences after it has been dismissed for non-prosecution, or whether the complainant is strictly required to file a fresh complaint. The High Court held that the trial court acted correctly in restoring the complaint. The ratio of the decision is that in cases involving cognizable and non-compoundable offences, the dismissal of a complaint for non-prosecution is legally impermissible, as the court has a duty to pursue the matter regardless of the complainant's absence. The court emphasized that the administration of justice should avoid technicalities and that the original order taking cognizance remained valid. Consequently, the court dismissed the revision application, affirming that the trial court’s restoration of the complaint did not suffer from any illegality or impropriety.
- Can a direct complaint involving cognizable and non-compoundable offences be dismissed for non-prosecution?
- Does a trial court have the jurisdiction to restore a direct complaint after it has been dismissed for non-prosecution?
- Is the filing of a fresh complaint the only remedy available when a direct complaint is dismissed for non-prosecution?
- Section 161, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
1. ' By this criminal revision application, the applicant Ghulam Hussain has assailed the order, dated 30-3-2000 passed by the learned Special Judge, Anti-Corruption, Sukkur in Direct Complaint No,39 of 1997 Re: Gul Muhammad v. Ghulam Hussain.
2. ' The brief facts of the case are that on 11-4-1997 complainant filed a direct complaint before the learned trial Court and after holding the preliminary enquiry, the same was brought on the file.
3. ' After completing all the codal formalities, the formal charge was framed on 7-10-1998 against the accused. On 19-2-2000, the learned trial Court dismissed the direct complaint for non-prosecution.
4. ' On 8-3-2000, the complainant moved an application before the trial Court for excuse of his absence and recalling of the order, dated 19-2-2000. The learned trial Judge recalled the order, dated 19-2-2000 by impugned order on 30-3-2000 and restored the case to its original position.
5. ' I have heard Mr. Mushtaq Ahmed Leghari, learned counsel for the applicant. He placed reliance on the case of Subramania Kandar v. Ramaswami Kandar AIR (36) 1949 Mad.
6. 154.
7. ' I have also heard Mr. Sher Muhammad Shar, learned Assistant Advocate-General, Sindh, on behalf of the State and perused the material placed on the record.
8. ' The perusal of the record shows that the offences alleged are punishable under section 161, P.P.C. -.Read with section 5(2) of the Prevention of Corruption Act, 1947 which are cognizable and non- compoundable. The cases which arise out of the offences which are cognizable and non- compoundable cannot be dismissed for non-prosecution.
9. ' It is well-settled that while imparting/administering the justice, Courts have to avoid technicalities.
10. ' The contention that the Court had no jurisdiction to restore the complaint to its original position and only remedy available to the complainant was to file the fresh complaint is misconceived. The original order with regard to taking the cognizance was not without jurisdiction, therefore, the impugned order does not suffer from any illegality or impropriety. The citation in case of Subramania Kandar (ibid) is distinguishable from the facts and circumstances of the present case.
11. ' Resultantly, the present Criminal Revision Application No,74 of 2000 merits no consideration and stands dismissed alongwith listed application.
Cited by 1 case
- Ghulam Rasool Aamar vs The State through DPG & another 2021 SHC 1174