1. ' This appeal is directed against the judgment, dated 4th of December, 2000 whereby a learned Single Member dismissed the complaint under section 203, Cr.P.C.
2. ' Facts briefly are that the appellant filed a complaint against respondents under section 22-D of the Industrial Relations Ordinance, 1969 (since repealed) hereinafter referred to as the Ordinance read with Regulation 32(1) of the NIRC (Procedure and Functions) Regulations, 1973 alleging that he was General Secretary of S.G.S. Workers Front while the respondents/accused were pressurizing the office-bearers and workers of the union to refrain from trade union activities. Complainant/ appellant also alleged that to achieve their nefarious design, the respondents suspended him from his duties for a period of four days which was completed on 12-6-2000. However, on 13-6-2000 when he went to attend the office after the period of his suspension, he was not allowed to enter the premises and was manhandled. The respondents Nos.6 and 7 also assaulted him with kicks and fists and hurled filthy and vulgar abuses. He was also confined for some time in a secret cabin.
3. Thereafter one Mrs. Aneela, employee of the respondent establishment brought the suspension order and forcibly got his signature. Thereafter respondents Nos. 6 and 7 who as already stated assaulted him, pushed him out of the gate.
4. ' The learned Member conducted the preliminary inquiry and after scanning the same dismissed the complaint under section 203 of Cr.P.C. Hence this appeal.
5. 'Learned counsel appearing for the respondents at the very out- set has taken exception to the very maintainability of the appeal contending that under section 22-D of the Ordinance, the appeal only lie against the conviction recorded in the form of sentence and not against the dismissal of complaint which amounts to acquittal. Learned counsel appearing for the appellant Mr. M.A.K. Azmati, has argued otherwise and referred to certain cases in support of his contention.
6. Mr. Shahid Anwar Bajwa, learned Amicus Curiae has ably thrashed the entire law on the subject.
7. ' I have considered the contentions and have gone through all the documents appended with his appeal. I would deal with the preliminary objection at the very out set. Section 22-D of the IRO, 1969 is identical to section 52 of the IRO, 2002. It would be appropriate to reproduce section 22-D of the Ordinance, 1969 which has provided the forum of appeal in the following terms:-- "(22) D. Appeals.--- (1) Notwithstanding anything contained in this Ordinance, or in any other law for the time being in force, any person aggrieved by an Award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the .
8. Commission, other than a Full Bench, may, within thirty days of such award, decision or, sentence or order, prefer an appeal to the Commission."
9. ' The reading of this section makes it clear that the appeal is provided against (1) award (2) decision (3) sentence and against an order of determination of collective bargaining unit. The reliance of the learned counsel of the respondent on Cap. (Retd.) Abdul Wajid and 2 others v. Sher Muhammad and others 1980 PLC 800(U) is not apt, as the same was a case of acquittal. The subject-matter of the present appeal is not a case of acquittal. In the present case the learned Single Bench after recording the preliminary evidence of the complainant side dismissed the complaint under section 203, Cr.P.C. Which by no stretch of imagination amounts to acquittal.
10. Section 203, Cr.P.C. Provides as under:-- "Dismissal of complaint.--- The Court before whom a complaint is made or to whom it has been transferred or sent may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry if any under section 202 there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reason for so doing."
11. ' In this case the learned Member formed his view of dismissal of complaint after scanning the complainant evidence. He never issued any process against the respondent nor called them. The acquittal always follows formation of charge and thrashing of evidence of both sides. The word acquittal has been defined in Regulation 27 of the NIRC (Procedure and Functions) Regulations, 1973 which is as under:-- "Acquittal or conviction.--- If the Commission, upon taking the evidence referred to in regulation 26 and such further evidence (if any) as it may, of its own motion, cause to be produced, and (if it thinks fit) examining the accused, finds the accused not guilty, it shall record an order of acquittal, or it if finds the accused guilty, pass sentence upon him according to law."
12. ' Regulation 26 reference of which is made in the aforementioned Regulations provides as under:-- "Procedure where no such admission is made.--- (1) If the Commission does not convict the accused under the preceding regulation or if the accused does not make such admission, the commission shall proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.
(2) The Commission may, if it thinks fit, on the application of the complainant or accused, issue a summons to any witness directing him to attend or to produce any document or other thing.
(3) The Commission may, before summoning any witness on such application, require that his reasonable expenses, incurred in attending for the purposes of the trial, be deposited with the commission. "
13. ' The reading of the aforementioned two Regulations brings us to an irresistible conclusion that the conviction or acquittal can only be recorded after the framing of charge and collection of evidence. In that situation section 403 of Cr.P.C. Would also come into play which bars the subsequent trial. The Explanation to section 403, Cr.P.C. Also supports this view which is in the following terms:-- "Explanation. The dismissal of a complaint, the stopping of proceedings under section 249 or the discharge of the accused is not an acquittal for the purposes of this section."
14. ' The present order of dismissal of complaint is neither an acquittal nor discharge. It is simply a dismissal order of the complaint and as already stated the second complaint on the same facts would also be maintainable. Reliance in this respect is placed upon PLD 1960 (AJ&K) 24, Muslim Miah v. Munsar Ali Haji and 6 others 1969 PCr.LJ 849 (Dacca) and Atta Muhammad and others v.
15. Iqrar Ahmed and another 1991 PCr.LJ 274 (Karachi).
16. ' We respectively do not follow the determination reported in Abdul Majid Khan v. Pakistan Railways, Lahore 1987 PLC 335 where the appeal was dismissed being not maintainable. We have noticed that entire law on the subject was not brought to the notice of learned Full Bench. In another case reported as General Secretary, Karachi Electric Supply Limited Corporation Labour Union v.
17. Registrar, National Industrial Relations Commission, Islamabad and 2 others 1987 PLC 340. The same learned Members of the Full Bench took different view and held that an appeal would lie from an order determining a collective bargaining agent. It would be appropriate to reproduce the determination of learned Full Bench which is in the following terms:-- "In providing for appeal, a Statute normally (1) creates the right of appeal, (2) proscribes a forum for disposal of such appeal and (3) spells out the power which that forum can exercise in respect of the appeal. A reading of the above provision shows that subsection (1) creates a right of appeal in favour of any person who is aggrieved by (1) an award or (2) a decision given, or (3) a sentence or (4) an order determining and certifying a C.B.U. Passed by any Bench of the Commission other than a Full Bench. This right has been made available "notwithstanding anything contained in this Ordinance or in any other law for the time being in force". In the presence of this non-obstante clause, the absence of a provision for appeal in respect of a particular matter to a Labour Court or Tribunal would have no bearing whatsoever on the right of appeal conferred under subsection (1).
18. And if the matter were to end here, there would be no difficulty in declaring the appeal to be maintainable if it otherwise passed the test of subject (1)."
19. ' It is now to be seen whether the impugned order in the circumstances is a decision or not. The word decision has not been defined either in the Ordinance or in the Regulation. It has got no fixed meaning. It is not restricted to judicial acts. It is a comprehensive term and may even include ministerial determination. It would be appropriate to reproduce the dilation upon this word made in the case, The Pakistan Telecom Company Lions Staff Union Lahore through President v. The National Industrial Relations Commission through Chairman-cum-Registrar and 2 others 1999 PLC 320 which is in the following terms:- "In Black's Law Dictionary 32 (6th Edition) it has been defined as under:-- Decision. A determination arrived at after consideration of facts and in legal context law. A popular rather than technical or legal word; a comprehensive terms having no fixed legal meaning. It may be employed as referring to ministerial acts as well as to those that are judicial or of a judicial character.
20. ' A determination of judicial or quasi judicial nature. A judgment, decree, or order pronounced by a Court in settlement of a controversy submitted to it and by way of authoritative answer the question raised before it. The term is broad enough to cover both final judgments and interlocutory orders. And through some time limited to the sense of judgment, the terms is at other times understood as meaning simply the first step leading to a judgment, or as an order for judgment.
21. The word may also include various rulings well as orders, including agency and commission orders U.S.V. Thompson, 251, U.C. 407 40 S.C. 289,64 Ed.333.
22. ' In Islamic Republic of Pakistan, v. Abdul Wali Khan M.N.A. PLD 1976 SC 57 at page 104 it has been defined as under:-- "In the technical judicial terminology the word 'decision' may connote. Determination of judicial nature as a judgment or decree pronounced by a Court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it (vide Black's Law Dictionary), yet it is a comprehensive term having no fixed legal meaning and may equally well be employed as referring even to ministerial acts but when read in conjunction with the word 'matter' which Black's Law Dictionary defines 'as the subject-matter of controversy' or substantial facts forming the basis of a claim or defence then it becomes the subject of litigation that it to say the lis' itself. Therefore, a final decision is a decision which leaves nothing open to further dispute and which sets at rest the causes of action between the parties from which no appeal or writ of error can be taken."
23. ' Similarly in Corpus Juris Secundum the word decision has been defined in the following terms:- "A popular and not technical or legal word, and a very comprehensive term having no fixed legal meaning. It has been said that a decision necessarily involves a dispute, actual or potential and the reaching of a conclusion...Hi its common use, the word has been defined as meaning act of deciding, settling, or terminating, as a controversy by giving judgment on the matter at issue; determination or result arrived at after due consideration, as of a question or doubt settlement or conclusion. Strictly speaking it is intended to embrace the last act of the Court, in other words, the judgment, a decision of the case for or against one of the parties, and as used in particular statutes, may mean of final decision and in its broad generic sense it means a final determination of the rights of the parties in the action. (Vol. 26 PP.41 & 42).
24. ' Reference is also to be made to Haji Khan Bhatti v. Dr. Munir Ahmad Mughal and others 1992 PLC 632 where it was held as under:- "In this case the impugned order has been passed by the Registrar under section 8(4) in relation to Industry-wise trade union and, therefore, while exercising his powers and performing his functions as such, he shall be deemed to have exercised the power of a Labour Court under clause (b) subsection (3) of section 22-B of the Ordinance, therefore, the Labour Court cannot hear an appeal against the order which is passed by any Bench or the Commission as Labour Court. In such a case, the decision given by a Bench of the Commission is appealable before Full Bench of the Commission as provided under section 22-D."
25. ' Reference is also made to Water and Power Development Authority, Lahore Through its Chairman and 2 others v. Haji Bashir Hussain and another (sic) PLC 1992, wherein it was held as under:- "'Decision' as pointed out in Saunder's and quoted with approval by Supreme Court of Pakistan in the case of Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan, 1987 SCM R 1107 implies the exercise of a judicial determination as the final and definite result of examining a question. In the instant case the order appealed from finally disposes of a plea raised in the application for recall of an earlier decision of the Court. We are therefore of the view that impugned order is appealable."
26. ' As far as the determination of learned Single Member is concerned no exception can be taken to the same. He scanned the entire evidence brought on record by the complainant which was contradictory in nature. Furthermore the conduct of the complainant at the alleged place of occurrence appears to be unnatural. It has come-on record that when the two witnesses got examined by him at preliminary stage tried to save him from miscreants, he straightaway refused, their help and asked them to leave the place. Further none of the witnesses has stated that the signature of the complainant as alleged in the complaint was obtained through force. It the presence of such evidence learned Single Member was right is not issuing the process to the other side. Learned counsel appearing for the appellant has failed to point out any legal lacuna in the impugned order warranting interference.