' SAGHIR AHMAD, J.--- This single judgment will dispose of Criminal Revisions Nos.172 of 2004 as well as 56 of 2007, as both carry same facts and arise out of one proceedings.
2. Precisely the matter is that Khan Muhammad respondent herein at the first instance got lodged an F.I.R. No,216 under sections 396 and 324, P.P.C. With Police Station Saddar Chishtian with a specific narration, however, being not satisfied with the conduct of the investigation, he preferred a private complaint before the learned Additional Sessions Judge Chishtian who entrusted the same to the Magistrate Section 30 for inquiry under section 202, Cr.P.C. And the said Magistrate after holding inquiry opined that alleged charges were made out against the accused, as such, vide order, dated 30-6-2006 the learned Magistrate forwarded his report to the learned Additional Sessions Judge and directed the complainant to appear before the said Court on 2-7-2004. It so happened that the complainant/respondent did not appear before the learned Additional Sessions Judge on 2-7-2004, whereby, the said Court held that attendance of the complainant in the complaint was necessary till the orders in respect of either the accused are summoned or not, resultantly, dismissed the complaint for non-prosecution. On coming to know about the dismissal of his complaint in default the complainant on 7-7-2004 moved an application for restoration of the complaint on the ground that he was in fact misled therefore, he could not appear before the Court. The learned Additional Sessions Judge vide impugned order, dated 7-7-2007 while allowing the said application, restored the complaint and further on, observed that as the allegations apparently stood verified from the preliminary evidence and the Judicial/Inquiry Magistrate also had opined to the same effect, therefore, accused persons/petitioners were ordered to be summoned for 10-7-2004. Through these petitions the petitioners/accused have assailed the order dated 7-7-2004 mainly on two grounds, firstly that after dismissal of private complaint for non- prosecution on 2-7-2004 there was no provision in the Criminal Procedure Code enabling the learned Additional Sessions Judge to review his said order and restore the complaint and secondly that after registration of F.I.R. The prosecution had not been able to find any incriminating material against the petitioners, thus the complainant out of mala fide filed the complaint and the learned Additional Sessions Judge also erred in summoning the accused petitioners as there is no substantive material against them justifying their trial.
3. On the other hand, learned counsel appearing for the complainant/respondent assisted by learned D.P.-G. Has vehemently opposed both these petitions by arguing that the order, dated 7-7- 2004 so far as acceptance of complainant's application and restoration of his private complaint is concerned, is a valid order in nature of rectifying the mistake which had occurred in the order dated 2-7-2004 dismissing private complaint for non-prosecution. Further argues that the very order, dated 2-7-2004 was patently illegal as under no provision of Cr.P.C., a private complaint could be dismissed in default and that by restoring the complaint through subsequent order, dated 7-7-2004 substantial justice has been done. It is next argued that registration of an F.I.R. Is no bar for summoning the accused in a private complaint.
4. Arguments considered. Record perused.
5. During arguments, the learned counsel for the petitioners have frankly conceded that the order, dated 2-7-2004 was illegal as according to them also, the private complaint could not be dismissed by the learned Additional Sessions Judge for non-prosecution.
Section 247, Cr.P.C. Is the only provision in the Criminal Procedure Code which deals with the effect of non-appearance of the complainant, which reads as under:-- "Section 247. Non-appearance of complainant.--- If the summons has been issued on complaint and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reasons he thinks proper to adjourn the hearing of the case to some other day: ' Provided that ........................................................................................
' Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non-compoundable."
' From the above quoted provision of law, it is clear that; firstly it empowers only the Magistrate to take action and secondly it only applies after the accused have been summoned on such complaint and hearing is fixed for their presence. Furthermore, in terms of second proviso, this section would not apply in the cases where the accused are charged with offences which are either cognizable or non-compoundable. Now assessing case in hand, on the touchstone of section 247, -Cr.P.C. It is quite obvious that this is not a case where the learned Additional Sessions Judge could invoke this provision of law; firstly for the reason that the said Court was not vested with such jurisdiction; secondly that the private complaint was still at initial stage and accused had not yet been summoned; and thirdly for the reason that in the private complaint the allegations levelled by the complainant against the accused persons are not only cognizable but also some of them are non-compoundable. In this behalf reliance is placed on the case Abdul Rasheed Janjua v. The State and others 2003 YLR 2211. Thus, the learned Additional Sessions Judge through the order, dated 7-7-2004, reversing the earlier order, dated 2-7-2004 which on the face of it was illegal, has not committed any illegality or irregularity, rather has rectified the mistake which promoted the cause of justice.
' As regards section 203, Cr.P.C., it though deals with dismissal of complaint even before summoning the accused, yet such decision can be rendered only after considering the statement of the complainant (if any) and the result of the investigation or inquiry if any under section 202, Cr.P.C. And the Court seized of the matter believes that no sufficient grounds for proceeding with the complaint and summoning the accused, exist. It is in these circumstances that a private complaint can be dismissed. As such this section is also not attracted in the instant case, as here the complaint was dismissed only for non-prosecution and that too without considering the material.
' Further after analysis the Honourable Shariat Couft (AJ&K) in the judgment reported as Muhammad Asif v. The State 2001 PCr.LJ 895, observed that:-- "Court may recall its own order, if it suffers from inherent vice or appears on the face of it erroneous, unjust and without jurisdiction, having regard of the material on the record."
As stated above, illegality of the first order, dated 2-7-2004 dismissing the complaint for non- prosecution is admitted even by the learned counsel for the petitioners, thus, keeping in view the cited case-law, no injustice has been done by the learned Additional Sessions Judge by passing the order, dated 7-7-2004, rather has promoted the ends of justice by rectifying the patent error.
Furthermore, the word used in section 369, Cr.P.C., is only "judgment" for the review of which certain conditions have been imposed. As such there is no specific embargo for the Courts to correct or review its orders which on the face of it are erroneous, unjust or without jurisdiction. In this behalf the Honourable Supreme Court of Pakistan in the case Additional Collector-II Sales Tax, Lahore v.
Abdullah Sugar Mills Ltd. And others 2003 PTD 1664 held:-- "Whatever is not prohibited, is permitted unless same specifically violates any law or rules."
' Neither such prohibiting clause with regard to order exists in the Criminal Procedure Code nor any case-law could be cited by the learned counsel for the petitioners.
6. So far as summoning of the accused is concerned, the learned Additional Sessions Judge as well as the Inquiry Magistrate have held that offences against the accused were made out, therefore, the contention of the learned counsel for the petitioners for their acquittal is not sustainable at this stage, as truth or falsehood of the allegations would be determined in due course of trial, where of course the accused/petitioners will have full opportunity to defend themselves or otherwise, they may move the trial Court under the relevant provisions of Criminal Procedure Code in this behalf.
7. For what has been discussed above, both these criminal revisions fail and are accordingly dismissed. The able assistance rendered by the learned counsel for the parties is appreciated.