1. ' This criminal revision is directed against the order, dated 17-9-2002 passed by learned Special Judge Anti-Corruption, Sukkur whereby' the direct complaint filed by applicant/complainant (hereinafter to be called applicant) was dismissed in limine.
2. ' The relevant facts for disposal of this revision application are that applicant had, initially, filed a direct complaint which was dismissed for non-prosecution. Again another complaint was filed by applicant on whom a preliminary enquiry was ordered. During the course of preliminary enquiry, the statement of applicant Saeed Ahmed and P.W. Nisar Ahmed were recorded by learned Special Judge Anti-Corruption, Sukkur who at that stage allowed the complainant to examine other witnesses namely Zahoor Ahmed Memon, Deputy Controller, Board of Intermediate and Secondary Education, Sukkur, Muhammad Bux Pirzada, Malaria Superintendent, Shafi Muhammad Shaikh, Accountant .Malaria Office, Khairpur and Dr. Muhammad Usman, Taluka Health Officer, Khairpur.
3. The above named witnesses appeared on two dates of hearing before learned Special Judge- Anti-Corruption, Sukkur but they could not be examined as complainant moved applications for grant of adjournment. Then on 10-8-2002 when the matter came up for hearing, complainant was present and stated that his Advocate, Mr. G.M. Soomro was on the way to Sukkur but, the latter did not reach the Court up to 11-05 hours hence learned Special Judge dismissed the complaint under section 203, Cr.P.C. With the following observation:-- "This preliminary enquiry was filed before this Court on 11-5-2001, more than a year has passed complainant has not been able to close the side. Accordingly, complaint is dismissed under section 203, Cr.P.C."
4. ' Later, applicant filed another direct complaint which was dismissed by Special Judge Anti- Corruption by the order 'impugned herein, hence applicant has come up with present revision application.
5. ' Mr. Tejwani, learned counsel for applicant in the first place stated that prior to the dismissal of direct complaint of applicant under section 203, Cr.P.C. Under order dated 10-8-2002 no other direct, complaint was filed and that after dismissal of previous complaint under section 203, Cr.P.C.
6. Applicant could file another complaint on the same facts/material as there was no legal bar to the filing of second complaint. In support of his contention, he placed reliance on the cases of Gulab Khan v. Fazal Hussain, PLD 1967 SC 340; Muslim Miah v: Mansur Ali 1969 PCr.LJ 849; Sher Adat Khan v.
7. Sahib Din 1989 PCr.LJ 1299 and Atta Muhammad v. Iqrar Ahmed 1991 PCr.LJ 274.
8. ' On the other hand, Mr. Noor Hassan Malik holding brief for Mr. Abdul Fattah Malik, learned counsel for respondents argued that initially an F.I.R. Was lodged by father of the applicant which was investigated by the Investigating Officer who recommended that the case be disposed of in a cancelled class and that learned Special Judge Anti-corruption vide his order dated 27-2-2001 had concurred with the Investigating Officer and that filing of two direct complaints were nothing but a device to harass the respondents after a lapse of 15 years of the offence. Mr. Malik contended that neither applicant was an aggrieved party nor he appeared to be willing to examine the above named four witnesses as is evident from the impugned order and since the applicant had failed to close his side, the impugned order was rightly passed by learned Special Judge Anti-Corruption, Sukkur.
9. ' Mr. Yousfi, learned Assistant Advocate-General stating to be on Court notice simply stated that the second complaint filed by the applicant was competent and could not have been dismissed under the impugned order.
10. ' I have given my due attention to the arguments of learned counsel appearing before me and with their assistance I have examined the material made available before me. I have also gone through the case-law referred to by Mr. Tejwani in support of his contentions. The question for determination before me is whether applicant could file second direct complaint once his previous direct complaint was dismissed under section 203, Cr.P.C. The other questions raised by Mr. Malik that complainant is not an aggrieved party or that the complaints were filed with an object to cause harassm ent to the respondents are not relevant herein for the simple reason that neither these questions came up before learned Lower Court nor the same were considered when learned Special Judge Anti-Corruption, Sukkur dismissed the direct complaint of applicant under section 203, Cr.P.C. In limine.
11. ' Before the merits are touched upon to determine the question in the light of settled principles of the law, it will be advantageous to reproduce the operative part of the impugned order, as follows:- - "As observed by me, complaint filed by complainant was dismissed on 10-8-2002 under section 203;' Cr.P.C. As the complainant failed to examine the witness cited by him in his complaint.
12. ' In view of above, I am of my considered opinion that it is not open for the complainant to come again and again with the very same complaint, even on merits the incident appears to have taken place somewhere in the year .1987-88, which means 15 years have passed and the complainant has approached this Court for taking cognizance, I am therefore, of my considered view that the complaint is misconceived which accordingly is dismissed in limine, as I see no ground to examine complainant under section 200, Cr.P.C."
13. ' Admitted fact is that there is no final determination of the first complaint on merits after appreciating the evidence whatever available before learned Lower Court. Neither the respondents who were nominated as accused persons in the direct complaint were discharged nor acquitted.
14. Mr. Malik, learned counsel for respondents is also not in a position to state that there is any legal bar to the filing of second direct complaint after previous complaint stood dismissed under section 203, Cr.P.C. Perusal of order dated 10-8-2002 reflects that learned Special Judge Anti-Corruption, Sukkur had initiated preliminary enquiry on the previous direct complaint. He recorded statement of complainant and one of his witnesses. Also he allowed the complainant to examine four Government officials as witnesses, his observation, now, in the impugned order that when on merits the incident took place 15 years back and it is not open for complainant to come again and again, therefore, according to his view, the complaint was misconceived' is ununderstandable and is not proper.
15. ' In the above background of the case I have gone through the case of Gulab Khan (supra). In the cited case, a revision application filed by petitioners therein before Lahore High Court a question was raised whether 'on dismissal of earlier complaint for non-prosecution, a second complaint on the same allegation was not competent. This question was determined while dismissing the said revision application, inter alia, with following observation:-- "The learned counsel for petitioner could not cite an authority in support of his contention that the dismissal of a complaint for non-prosecution would operate as a bar to the entertainment of a fresh complaint on the same allegations. Obviously, this being not a case of discharge much less of acquittal, there could hardly be any objection to .The entertainment of the complaint on the same allegations for decision on merits. The objection is accordingly overruled."
16. ' It may be noted that I have already observed hereinabove that the admitted position in the instant 'case was that there was no final determination of the first complaint on merits after appreciating the evidence whatever available. Learned Special Judge Anti-Corruption, B Sukkur dismissed, the complaint of the applicant under section 203, Cr.P.C. Vide his order dated 10-8-2002.
17. Be that as it may, the above question also came under discussion in case of Atta Muhammad (supra). In the said case, the circumstances were almost identical as are in the instant case. The respondent No,1 therein had lodged F.I.R. Against the applicants therein so also the applicant Atta Muhammad had lodged a counter FIR. At the same police station. The report lodged by said respondent No,1 was disposed of in "B" class as false; consequently, the respondent filed a direct complaint against the applicants therein which, was dismissed under section 203, Cr.P.C. After holding a preliminary enquiry. Initially the said respondent challenged that order before High Court which, subsequently, he withdrew with permission to re-file the same. However, instead of filing a fresh revision, he filed a direct complaint against the applicants and others which was brought on regular file by the same Additional Sessions Judge vide his order dated 13-10-1987 which was a subject-matter of the revision application in the case. My respected late. Brother Qaiser Ahmed Hamidi, Judge of this Court (as then he was) after referring to plethora of Indian as well as Pakistan's case-law dismissed the revision application with following observation that "it is an established position of law that an order of dismissal of complaint under section 203, Cr.P.C. Is no bar to the entertainment of the second complaint on the same facts". Further, that "neither section 369, Cr.P.C. Nor section 403, Cr.P.C. Operates as a bar to second complaint. There is ample case- law available on this subject which lends support to this view..." In the cited case, respectfully stated it was also observed:- "(6) Although a second complaint can be entertained after the earlier one is dismissed under section 203, Cr.P.C., but there should be exceptional circumstances to do so. The observations made by Bhide, J. In the case of Allal Ditta v. Karm Bakhsh reported in AIR 1930 Lah. 879 are relevant in this behalf which are reproduced below- "But although a previous dismissal under section 203, Cr.P.C. May not be legally a bar to the institution of a fresh complaint, it would be only in exceptional circumstances that a second complaint would be entertained on the same facts as pointed out in Emperor v. Kiri 19 Cr.LJ 364 e.g. Where the previous order was passed on an incomplete record or where the previous order was manifestly absured or foolish."
18. ' Mr. Tejwani in his arguments stated that in the instant case, too, the record was not complete before learned Lower Court in the sense that four witnesses which were allowed to be examined, their evidence was yet to come on record and moreover, whatever evidence/material was available before learned Lower Court was not considered at all. Besides, on the day viz. 10-8-2002 when the previous complaint was dismissed, complainant was present and learned Lower Court had kept the case aside on his request that his Advocate would appear; also on that day no P.W.
19. Was in attendance and no prejudice was being caused yet it looks quite absurd that learned Lower Court decided to dismiss the complaint at 11-05 hours. Mr. Malik has not denied that on that day no P.W. Was -in attendance and that complaint was dismissed at 11-05 hours.
20. 'Considering the above facts, circumstances and the case-law, I am clearly of the view that a second complaint could be filed by applicant after his first complaint was dismissed under section 203, Cr.P.C. Accordingly, I allow this revision application, set aside the impugned order and remand the case to learned Special Judge Anti-Corruption, Sukkur to proceed further in the matter and decide the same in accordance with law.
21. ' This criminal revision stands disposed of in the above terms along with the listed application.