JUDGMENT MAZHAR IQBAL SIDHU, J.---Petitioner being brother of deceased Mst. Sakina Bibi as an aggrieved and being a complainant of the criminal case has called in question, order dated 19-5- 2010 passed by the learned Additional Sessions Judge, Liaqatpur whereby Mohkim-ud-Din, Muhammad Arshad, Jamal-ud-Din and Haji Faqeer Bakhsh were summoned in a private criminal complaint under sections 302, 34, 109, P.P.C. To face the trial.
2. Brief facts giving rise to the institution of instant criminal revision are that petitioner, got a case registered through F.I.R. No.244 dated 8-5-2009 under sections 302, 34, P.P.C. At Police Station Taranda Muhammad Pannah District Rahimyarkhan for the murder of his sister Mst. Sakina Bibi against (i)
Muhammad Din, (ii) Ghulam Mohy-ud-Din, (i.e) Shabbir Ahmad and (iv) Muhammad Saleem.
Case was investigated and report under section 173, Cr.P.C. Was prepared by placing the names of the accused in column No.2 of the report, being innocent, on 30-8-2009 and the same was submitted to the court for trial in accordance with law and the trial is going on.
3. About the murder of Mst. Sakina Bibi a criminal complaint under secconditions 109, 34, 302, P.P.C.
Was instituted by Noor Din against Mohkim-ud-Din, Muhammad Arshad, Jamal Din and Haji Faqeer Bakhsh on 24-9-2009 and after its preliminary proceedings all the respondents were summoned by the learned Additional Sessions Judge Liaqatpur (Mr. Shahid Hussain Chaudhry) vide order dated 1-4-2010. Thereafter, the complainant moved an application on 7-4-2010 requesting for withdrawal of the said complaint. The application was allowed by the learned trial Court and the complaint was dismissed as having been withdrawn vide order dated 29-4-2010.
4. Moqeem-ud-Din respondent No.2 an eye-witness of the withdrawn complaint filed a fresh criminal complaint under sections 109, 34, 302, P.P.C. Against Mohkim-ud-Din, Muhammad Arshad, Jamal Din and Haji Faqeer Bakhsh for the murder of Mst. Sakina Bibi on 6-5-2010, after completing preliminary proceedings learned Additional Sessions Judge Tehsil Headquarter Liaqatpur District Rahimyar Khan summoned the respondents vide order dated 19-5-2010 (under assail).
5. Hence the instant revision petition.
6. In support of this revision petition it has been argued by the learned counsel for the petitioner that after the dismissal of first complaint second criminal complaint on the same facts against the same respondents (accused) could not be instituted and according to section 248, Cr.P.C.
Withdrawal of the complaint means acquittal of the respondents and once the accused persons are acquitted they cannot be again tried for the same offence by virtue of section 403 Cr.P.C. And under Article 13 of the Constitution of Islamic Republic of Pakistan 1973. Learned counsel has submitted that Muqeem-ud-Din respondent No.2 has filed a private complaint on the same facts and circumstances upon which Noor-ud-Din had filed the private complaint which was withdrawn, therefore, the respondents can not be tried for the second time. Learned counsel for the petitioner has further argued that impugned order of summoning of the respondents/accused passed by the learned trial Court is liable to be set aside in view of earlier order passed on 29-4-2010 whereby the complaint was dismissed as withdrawn, therefore, revision petition may be accepted.
7. Learned D.D.P.P has not agreed with the learned counsel for the petitioner on the ground that the respondents were not in fact tried by the learned trial Court and withdrawal of the complaint means dismissal of the complaint and not acquittal of the respondents. He has further argued that there is no bar in filing the second complaint on the same facts and circumstances when no order has been passed on merits after the regular trial.
8. Learned counsel for the respondent dent Muqeem-ud-Din has opposed the submissions of the learned counsel for the petitioner on the same lines which were adopted by the learned D.D.P.P. He has further argued that provisions of section 248, Cr.P.C. Are not applicable in complaint case triable by the Sessions Court. Therefore, impugned order has rightly been passed by the learned trial Court and the revision petition may be dismissed.
9. I have heard the learned counsel for the parties and have also gone through the record.
10. There is no bar in filing of second and third complaint wherein respondents-accused have not been acquitted after the regular trial. In the instant case respondents have not been acquitted after the regular trial. In this regard reliance has been placed on Asmat Bibi and another v. Asifa Riaz and 3 others (PLD 2002 SC 687) wherein it has been held as under:-- "Ss. 200, 204 & 403---Constitution of Pakistan (1973), Art.13---Second trial for same offence---- Dismissal of private complaint for non-prosecution--filing of second complaint--Maintainability-- -Accused persons were neither tried earlier nor were convicted or acquitted, the provisions of 5.403, Cr.P.C. And Art. 13 of the Constitution were not applicable in circumstances."
Ss. 204, 265-K & 561-A---Constitution of Pakistan (1973), Art. 185 (3)---Third complaint---Issue of process---First complaint filed by the complainant was dismissed for non-prosecution while second complaint was withdrawn for some technical defect---Complainant filed third complaint for the same occurrence, against the same accused persons---Objection was raised to the "'maintainability of the third complaint---Accused persons filed application under S.265-K, Cr.P.C.
For their acquittal which was dismissed by the Trial Court and petition under S.561-A, Cr.P.C. In High Court also met the same fate---Validity---Complaint in question was maintainable and competently filed---Supreme Court found no illegality in exercise of discretion under Ss. 265-K & 561-A, Cr.P.C. By the Trial Court and High Court respectively---No case of abuse of process of Court having been made out by the accused persons, Supreme Court declined to interfere with the orders passed by the Courts below---Leave to appeal was refused."
11. Keeping in view the above quoted dictum of August Supreme Court of Pakistan and facts/circumstances of this case, there is no illegality or infirmity in the impugned order dated 19- 5-2010. Therefore, the instant revision petition being devoid of any force is, hereby, D dismissed.
12. Although withdrawal of the first complaint is not issue in this revision petition but the same needs decision because the second private complaint is connected with the first private complaint, except the name of the complainant. It will not be out of place to mention here that the present complainant (Moqeem-ud-Din) was also an eye-witness in the first complaint. Keeping in view the provisions of Chapter XXII-A of the Cr.P.C. Which deals with the trials before the High Courts and Courts of Session, it is crystal clear that Sessions Judge/Additional Sessions Judge has no power to permit withdrawn of the private complaints. In this regard reliance is placed on Nazar Ahmad v. Muhammad Aslam and 2 others 1988 PCr.LJ 1787 wherein it has been held as under:-- "S. 248-Complaint case--- Withdrawal of---Challenge to---Whether complaint can be withdrawn by Complainant--- Question of---A complaint in summons case triable under Chapter XX can only be withdrawn with permission of Magistratg--- Instant case was not triable under Chapter XX of Cr.P.C---Held: Additional 'Sessions Judge had no authority to permit complainant to withdraw complaint or to dismiss it as having been withdrawn---Case remanded for proceeding in accordance with law."
Therefore the order dated 29-4-2010 passed by the learned Additional Sessions Judge (trial Court) is recalled and the said first criminal complaint shall be deemed to be pending before the learned trial Court. It is however, clarified that the trial of this complaint shall commence against Mohkimud-Din and other and the first complaint shall follow the result. It is further clarified that the trial of the challan case shall not be prejudiced/effected by the trial/findings of both the complaints.