MUHAMMD JEHANGIR ARSHAD, J.-- The petitioner who has filed private complaint under Sections 302,364,201/109 PPC seeks quashment of order dated 8 4.2005 passed Addl. Sessions Judge, Bahawalpur where said complaint was dismissed by the learned Addl. Sessions Judge due to non- appearance of the petitioner.
2. The facts briefly stated are that for the murder of his brother, namely, Asmat Ullah Khan Niazi the petitioner got recorded FIR No..117, dated 1.4.2004 under Section 364, PPC with Police Station Civil Lines, Bahawalpur which was later on converted into one under Sections 302,364,201/109 PPC. The petitioner having not been satisfied with the investigation conducted by the police proceeded to file above mentioned private complaint on 28.1.2005 before the Illaqa Magistrate who sent up the same to the learned Addl. Sessions Judge, Bahawalpur. The Adil. Sessions Judge, vide order, dated 11.2.2005, sent the complaint to the Illaqa Magistrate for inquiry under Section 202, Cr.P.C.
3. The learned Magistrate after recording the statement of complainant/petitioner and the other evidence produced by him found that the allegation of the complainant/petitioner were prima facie true and a case of issuance of process to summon the accused was made out, sent his report to the learned Addl. Sessions Judge on 17.3.2005 and directed the petitioner to appear before the learned Addl. Sessions Judge on 19.3.2005. According to the proceedings of the learned Addl. Sessions Judge on 19.3.2005 the learned counsel for the complainant/petitioner was not available and thus the case was adjourned to 25.3.2005 for preliminary arguments and from 25.3.2005 to 8.4.2005 neither the petitioner nor his counsel turned up and an application was moved through Mr. Sohail Mehmood Qureshi Advocate seeking dispensation of the attendance of the complainant of the attendance on the ground of his illness but the learned A.S.J dismissed the said complainant due to non-appearance of the complainant/petitioner on th ground that the application for adjournment was neither supported by any affidavit nor by any medical certificate b any competent person. The order of dismissal of private compliant by the learned Addl. Sessions Judge on 8.4.200 has now been called in question through this crimina revision.
4. This petition came up for hearing for the firs time on 5.5.2005 and finding force in this petition Mr. M.A. Farazi, Advocate appearing on behalf of State was directed to appear on Court call who accepted the notice on behalf o the State on the said date and obtained adjournment for the preparation of brief. Today i.e. 9.5.2005 Mr. M. Mukhtar Ahmad, Advocate, Learned counsel for the petitioner and Mr. M.A. Farazi, Advocate for the State have been heard.
5. Admittedly the report of the learned Magistrate dated 17.3.2005 recommending for issuance Of process and summoning of accused was put up before the learned Addl: Sessions Judge on 19.3.2005 which was adjourned at the request of the petitioner as on the said date his counsel was not available and the case was adjourned to 25.3.2005 and on 25.3.2005 it was again adjourned to 8.4.2005 for arguments on the report of the learned Magistrate. T0e court. Diary as mentioned above shows that the report of the learned Magistrate was. Put up before the learned Addl: Sessions Judge for the first time on 19.3.2005 under no provision of law be attributed to the petitioner because on 17.3.2005 the learned Magistrate only directed that the file of the case be placed before the learned Addl: Sessions Judge, hence the adjournments granted on 19.3.2005 to 25.3.2005 was not at the instance of the complainant/petitioner, however, adjournment dated 8.4.2005 was at the instance of the petitioner. Similarly the non-availability of either petitioner or his counsel on 8.4.2005 though attributable to the petitioner yet in either case the question remained the same that as to whether the presence of petitioner or for that purpose his counsel was necessary on 8;4.2005 when in terms of Section 203 Cr. P.C. The learned Addl: Sessions Judge had to consider the result of investigation/inquiry conducted by the learned Magistrate under Section 202 Cr. P.C and the learned ASJ had to decide as to whether there was sufficient ground for proceeding with the case. The learned ASJ even in the absence of complainant or his counsel could decide about the existence of sufficient ground for proceedings further in the case.
6. Since the learned Magistrate in his inquiry report had prima facie found that there was sufficient ground for proceeding further, hence the learned ASJ even in the absence of complainant/petitioner or his. Counsel could himself decide about the issuance of process for attendance of accused, or otherwise. If at all the learned ASJ was keen to hear the petitioner or his learned counsel, the best way would have been to grant adjournment giving one more opportunity to - the petitioner, especially when the complainant/petitioner being dissatisfied with the police conduct had sought shelter from the court by filing private complaint for the murder of his brother and in this way no injustice would have occurred, rather this must have been a step towards the advancement of cause of justice. There was yet another way out open for the learned ASJ i.e. The petitioner could have been directed to produce medical certificate for his non-appearance on the said date. Prima facie there appears to be no justification for the learned Addl: Sessions Judge to proceed in such a hasty manner, lt is an established principle of law that matters always be decided on merits and procedural irregularity or illegality should not come in the way of deciding the matters like the present one on merits whereas the learned ASJ even in the absence of complainant or his counsel could decide about they issuance of process to the accused/respondent. The learned counsel for the petitioner has very rightly relied upon the case of "Bashir Ahmad v. Akbar and others" (1995 P. Cr. L . J. 995) to argue that in the presence of a findings of the Trial Court that sufficient grounds for proceeding were made out there was no justification for the learned ASJ to have dismissed the complaint under Section 203, Cr. P.C.
7. Learned State counsel, namely, Mr. M.A. Farazi, Advocate has also not supported the order of the learned ASJ being too harsh and having been passed in an unnecessary haste. Every in terms of Noor Elahi's case PLD 1966 SC 708 the learned ASJ should have shown restraint and because in either eventuality the trial of the challan case had to be postponed till the decision of private complaint as held by the Hon'ble Supreme Court in Noor Elahi's case mentioned above.
8. The up shot of the above discussion is that the order dated 8.4.2005 cannot be maintained the same is accordingly set aside, the revision petition is accepted and the learned ASJ is directed to decide the question of issuance of process for the attendance of accused/respondent in the light of the report submitted by the learned Magistrate in the private complaint filed by the petitioner.