' RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.---The petitioner, namely, Muhammad Afzal son of Karim Bakhsh, by filing this constitutional petition, which has been converted into revision petition by order of even date, has called in question the judgment, dated 21-7-2008 and 10-2-2009 passed by the learned Judicial Magistrate and the learned Additional Sessions Judge, Sargodha, respectively and prays for setting aside thereof.
2. Succinctly the facts giving rise to this petition are that the petitioner got registered a case F.I.R.
No,127, dated 17-4-2006 under sections 324, 436/34 read with section 109, P.P.C. At Police Station Cantt. Sargodha against unknown persons and thereafter got recorded his supplementary statement on the same day nominating Saifullah, Shabana and Kausar Parveen as accused for the said offences; occurrence had taken place on the night between 16/17-4-2006,, when his son Muhammad Ashraf was celebrating his wedding night with Mst. Shabana and about 4-00 a.m.
Some unknown persons fired at him from the hole of window and thereafter set the said window at fire by sprinkling kerosene oil; during the course of investigation, the accused nominated by the petitioner had been found to be innocent and a cancellation report was prepared by the police and submitted before the learned Judicial Magistrate, who did not agree with it and summoned the accused to face trial; after conclusion of trial, the learned. Magistrate acquitted the accused of the charge vide judgment dated 21-7-2008, however, a notice under section 250, Cr.P.C. Was issued to the petitioner to show cause as why he may not be burdened with compensation of Rs,25,000 to be recovered from him as arrears of land revenue; the petitioner filed a reply thereto and the learned Magistrate proceeded to order that, compensation of Rs,25,000 be recovered from the petitioner and paid to the accused of the aforesaid case F.I.R. No,127 of 2006, but subject to appeal, if any; being aggrieved of the said order, the petitioner preferred appeal under section 250(3), Cr.P.C. Before the Court of Sessions at Sargodha, however, the same was dismissed by the learned Additional Sessions Judge, Sargodha. Hence, the instant petition.
3. The learned counsel for the petitioner argues that the' order passed by the trial Court was illegal as he was required to pass a separate order regarding the compensation; that the complainant lodged F.I.R. Against unknown persons, however, nominated the accused subsequently in his supplementary statement on the basis of information laid by Mst. Nasreen P. W.3 before him; that the learned Additional Sessions Judge also did not apply judicial mind while dismissing the appeal filed by the petitioner.
4. The learned Deputy Prosecutor-General Punjab for the State argues that the orders passed by the Courts below are legal and correct and no error has been committed by them; that the learned trial Magistrate has given reasons while passing judgment Of acquittal of the accused. He, however, frankly conceded to the contention of the learned counsel for the petitioner that the learned trial Magistrate should have passed a separate order with regarding to awarding of compensation.
5. After hearing the learned counsel for the parties and going through the orders impugned herein, it has been observed that the learned trial Magistrate was competent enough to issue notice to the petitioner under section 250, Cr.P.C. The petitioner had filed reply thereto, however, the order of the learned trial Magistrate is silent about it. He should have given the reasons while awarding compensation to the petitioner, but he had passed the order dated 30-7-2008 in the following manner:--- "Respondent in person. Robkar be issued to the Tehsildar Sargodha along with attested copy of this order to recover Rs,25,000 as arrears of land revenue and paid the same as compensation to the accused of case F.I.R. No,127 of 2006 Police Station Cantt., Sargodha namely Mst. Kausar Bibi, Shabana Kausar and Saif Ullah but subject to appeal, if any, under intimation to this Court and one copy of this order also be sent to the each accused and one copy to the counsel of the accused after verification of. Wakalatnama from the file of case F.I.R. No,127 of 2006 Police Station Cantt."
6. Under section 250, Cr.P.C., compensation can be awarded by the Magistrate when he is of the opinion that complaint lodged by the complainant is not only false but either frivolous or vexatious in the absence of any of the elements, awarding the compensation will not be proper. Awarding compensation in favour of each several accused relates to the penal action against the complainant. Magistrate ought to have passed order of imprisonment in case of default of payment of compensation.
' After passing acquittal of the accused person, if the Magistrate found that criminal proceedings initiated on the complaint or information is false and frivolous or vexatious, then he will have to give show-cause notice to the complainant or informant asking him why he should not pay compensation to each accused under section 250(2), Cr.P.C. Magistrate is bound to consider the reply of the show cause and he shall record and consider the reply/cause of the informant or complainant. After considering the reply/cause, if he is satisfied that the accusation was false, frivolous or vexatious, then he may award compensation upto Rs,25,000.
7. It is clear from the aforesaid circumstances that the learned trial Magistrate has not bothered to mention in the order that he had considered the contentions raised by the petitioner in his reply.
When a person was asked to submit his standpoint, then the Court is bound to give reasons to refute his version. In this case, he has not done so. Last paragraphs of the judgment dated 21-7- 2008 of the learned Magistrate indicate that after passing acquittal of the respondents, the complainant was imposed with Rs,25,000 compensation to be recovered as arrears of land revenue. No separate order has been passed except issuance of Robkar to the Tehsildar for the recovery of the said compensation. Although notice was replied by the complainant, but without recording any finding on it, the learned Magistrate on 30-7-2008 had issued Robkar to the Tehsildar for the recovery of said compensation. The learned Magistrate was required to determine the liability by a separate specific order. Reliance is placed on the cases of Achhru Mal y. Emperor AIR 1926 Lah. 298, Ma Pu v. Maung Tun Pe and another AIR 1940 Rangoon 110 and Mualim Shah v. Jan Muhammad and another 2000 PCr.LJ 718.
8. In these circumstances, I am of the view that order dated 30-7-2008 passed by the learned trial Magistrate was not tenable in the eyes of law and even the learned Additional Sessions Judge has not taken note of this fact and proceeded to pass the judgment of dismissal of the petitioner's appeal.
9. For what has been discussed above, this revision petition is allowed and the orders dated 304=2008 -and 10-2-2009 passed by ther Courts below are "set aside.
10. I do not want to comment upon merits of the order of acquittal, which has been challenged by the complainant and the same is pending in this Court. The matter to the extent of giving show- cause notice to the petitioner and awarding of compensation is remitted to the learned trial Magistrate to pass a fresh order after considering the reply filed by the petitioner in response to show-cause notice.