' SAGHIR AHMAD, J.--- Through this criminal revision, the petitioners have assailed the order dated 5-5-2005 passed by learned Additional Sessions Judge, Bahawalpur whereby, after withdrawal of private complaint by the complainant, proceedings were initiated in the challan case; and also the order dated 28-6-2006 passed by learned Additional Sessions Judge, Bahawalpur whereby their application under section 265-K, Cr.P.C. Was dismissed.
2. The facts in brief are that a case F.I.R. No,143 dated 22-5-2003 under sections 302/109/34, P.P.C.
Was registered against the petitioners and one Muhammad Asghar on the statement of complainant/respondent No,3, with the narration that accused party had formed a party and were extending threats to Muhammad Rafiq uncle of the complainant who used to forbade them for their ill deeds. On account of this grudge, on the fateful day and time, when Muhammad Rafiq along with Abdul Hamid and Abdul Razzaq was standing on the road side near complainant's home for proceeding towards Noorpur Noranga, Muhammad Amjad armed with Repeater and Nasir Mehmood carrying pistol while Muhammad Akhtar driving the motorcycle reached there, Nasir Mehmood and Muhammad Amjad fired shots from their respective weapons, hitting Muhammad Rafiq, who fell down. It was further alleged that Muhammad Akhtar also gave slaps to Muhammad Rafiq, who succumbed to the injuries at the spot.
3. Dissatisfied with the conduct of investigation, the complainant also filed a private complaint under sections 302/109/34, P.P.C. About the same incident. After recording preliminary evidence, the trial Court summoned the accused persons in the said private complaint. In the meanwhile, the police also submitted report under section 173 Cr.P.C., wherein four accused namely Muhammad Asghar, Muhammad Akram, Muhammad Akhtar and Abdul Majid were placed in column No,2 whereas, Muhammad Amjad, Nasir Mehmood and Ali Hassan were placed in column No,3 of the challan. After framing of charge in the private complaint, to which the accused claimed to be tried, on 5-5-2005 the complainant appeared in Court and opted to withdraw the said private complaint. The learned trial Court vide order dated 5-5-2005 dismissed the private complaint and also observed that "Now after the dismissal of the complaint, legal proceedings will be initiated in the connected challan case as submitted by the concerned police after due investigation". It may be relevant to mention here that the above quoted observations of the learned trial Court in the order dated 5-5-2005 remained unchallenged. Ultimately, proceedings commenced in the challan case and on 25-6-2005 charge was framed against six persons namely Muhammad Amjad, Nasir Mehmood, Muhammad Akram, Muhammad Akhtar, Abdul Majeed and Ali Hassan by the learned Additional Sessions Judge, Bahawalpur, to which the accused pleaded not guilty and claimed to be tried. Subsequently, on 27-4-2006 the accused persons made an application under section 265-K, Cr.P.C. Read with Article 13 of the Constitution of Islamic Republic of Pakistan, 1973, on the ground that as the private complaint against them had been dismissed as withdrawn and they will be presumed to have been acquitted in the said complaint, therefore, they could not be charged or tried in the connected challan case. The learned Additional Sessions Judge vide impugned order dated 28-6-2006 dismissed the said application with the following observations:- "The petitioners/accused have not assailed the said order viz. 5-5-2005 whereby they were directed to face trial in the connected challan case. The said order is still in the field. Further in the challan case Muhammad Siddique complainant is not competent to withdrawn the challan case."
4. The learned counsel for the petitioners has now assailed the above two orders of the learned Additional Sessions Judge, on the ground that private complaint as well as challan case were outcome of one and the same incident and after dismissal of the private complaint as having been withdrawn, the accused petitioners would be deemed to have been acquitted, as such, they could not be retried in the challan case for the same offence. While arguing, the learned counsel has also referred to section 403, Cr.P.C. As well as Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 with reference to the judgment cited in 1993 PCr.LJ 576 (Lahore).
5. On the other hand, learned D.P.-G. Has opposed this petition by arguing that withdrawal of the private complaint does not bar trial of the accused in the challan case as such section 403(i), Cr.P.C. And Article 13 of the Constitution of Islamic Republic of. Pakistan, 1973 is not attracted in the present case.
6. Arguments considered, record perused and the case-law thrashed.
7. No doubt the private complaint as well as the challan case were outcome of the same incident but the private complaint was filed by the complainant under the apprehension that challan case may not be investigated properly and the complainant was well within his right to withdraw the said private complaint, whereas the challan case could not be taken back by the complainant. The explanation to section 403 Cr.P.C. Reads as under:-- "Explanation.--- The dismissal of a complaint, the stopping of proceedings under section 249 (or the discharge of the accused) is not acquittal for the purposes of this section."
The above quoted explanation provides that discharge of the accused under section 249, Cr.P.C.
Does not amount to their acquittal for the purposes of this section, which means that dismissal of the complaint, or its withdrawal would not attract section 403, Cr.P.C. And accused can be tried in the challan case because mere acquittal on technical ground not on merits, would not debar the subsequent trial in the challan case. In this behalf the relevant portion from the judgment of this Court in Azmat Bibi and others v. Asfa Riaz and others 2002 YLR 401, is reproduced as under:--- "S.403. Protection against double jeopardy embodied in 5.403 would not apply in the case of third complaint when earlier two complaints were dismissed on technical grounds without recording any evidence and without deciding them on merits."
' Further a Division Bench of this Court in Ch. Zulfiqar Ali v. Chairman, NAB and others PLD 2003 Lah.
593, held as under:--- "Ss.403 & 249---Order passed after considering material placed before the Court at initial stage when no evidence had been recorded would not strictly be an order of acquittal in terms of S.403, Cr.P.C., which mandates that "the dismissal of a complaint, the stopping of proceedings under S.249, Cr.P.C. Or the discharge of the accused was not acquittal for the purposes of S.403, Cr.P.C.
8. In view of the above mentioned provisions of law, I am of the considered opinion that withdrawal of private complaint, before recording of any evidence would not attract the principle outre fois acquit, as such, cannot be considered a judgment of acquittal to bar subsequent trial in the challan case. Further, keeping in view the above background of this case, Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 providing "A person cannot be prosecuted or E punished for same offence more than once" is not applicable, for the reason that firstly the word used "prosecution" in this Article, according to Black's Law Dictionary (Seventh Edition), means "The commencement and carrying out of any action or scheme" that means that mere framing of charge, as in the instant ease, would not amount to prosecution unless further process like recording of evidence, is carried out; and secondly the word used "punished" is also signifiant, as according to the Black's Law Dictionary is defined "A sanction '-such as a fine, penalty, confinement, or loss of property, right, or privilege--against a person who has violated the law", whereas in the case in hand the petitioners are alleged to have been acquitted, admittedly as a result F of withdrawal of the private complaint wherein they were neither prosecuted not punished. In this behalf reliance is also placed on the case-law reported as Azmat Bibi and others v. Asfa Riaz and others PLD 2002 SC 687, wherein, the apex Court despite dismissal of first private complaint for non-prosecution, dismissal of second complaint for some technical defect, even then permitted filing of third private complaint. The learned counsel for the petitioners has not been able to point out any material illegality, irregularity or lack of jurisdiction on the part of the learned Additional Sessions Judge while passing the impugned orders to G justify interference by this. Court in its revisional jurisdiction; hence, finding no substance in the instant Criminal Revision, the same is hereby dismissed.