Syed Shahbaz Ali Rizvi, J: - Through this appeal, Nasreen Akhtar (appellant) has assailed the order dated 05.11.2002 passed by the learned Addl. Sessions Judge, Gujrat in a private complaint case titled Nasreen Akhtar v. Mian Abbas, SHO etc. Offence under Section 302, 148 & 149 PPC whereby, the learned trial court acquitted the accused respondents while dismissing the complaint under Section 247 Cr.P.C.
2. The machinery of law was set into motion by Mst. Nasreen (appellant) who on 10.12.2001 filed the afore-referred private complaint with the assertions that her maternal cousin Muhammad Jamil along with his friend Ghulam Hussain was booked in case FIR No.404 dated 24.11.1998 under Section 10 & 11 of Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 and confined in District Jail, Lahore. During their detention in the jail, complainant party of said case extended threats to kill both of them in police encounter. Thereafter, respondents No.1,2,4,5 &7 in connivance with respondent No.6 with consultation, obtained physical remand of Muhammad Jamil and Ghulam Hussain in a false case bearing FIR No.92/1996 offence under Section 392 PPC and on 18.06.1999 Mian Abbas (respondents No.1) armed with pistol, Raja Riaz (respondent No.2) armed with pistol, Abdul Rehman and Azam (respondents No.5 & 7) armed with rifles killed them in a fake police encounter by making firing upon them near Peer Darbar Syed Moosa Hijazi Moaza Budhan. This occurrence was witnessed by Khushi Muhammad, Shaheen Akhtar. Regarding this incident, Mst.
Nasreen Akhtar (appellant) filed writ petitions No.11448/99 and 7481/2001 but of no avail, hence the private complaint.
3. After filing of the complaint, learned Additional Sessions Judge, Gujrat, seized with the matter, referred the same to the learned Area Magistrate for holding inquiry under Section 202 Cr.P.C. Who after recording cursory evidence of the complainant, vide order dated 20.08.2002 submitted his report to the learned trial Court observing that prima-facie offences under Sections 302, 148 & 149 PPC were made out against respondents No.1,2,4,5 & 7. On the basis of said report, the said respondents were summoned by the learned trial court vide order dated 12.09.2002. Meanwhile on 05.11.2002 the complainant could not appear before the learned trial court while her application for exemption of her presence was moved but the learned trial court vide impugned order dated 05.11.2002 dismissed the private complaint under Section 247 Cr.P.C and acquitted the accused respondents, hence this appeal.
4. Learned counsel for the appellant contends that the learned trial Court has passed the impugned order in utter disregard of law as Section 247 Cr.P.C is available in Chapter XXII of the Code of Criminal Procedure, 1898, that deals with Magisterial trials only. Further contends that no such provision is provided by the legislature in Chapter XXII of the Code that deals with the sessions trials; that the learned trial court has erroneously applied Section 247 Cr.P.C in the instant case while passing the impugned order that is not maintainable in the eye of law.
5. While controverting the contentions raised by learned counsel for the appellant, learned counsel representing the respondents/accused supports the impugned order and vociferously urged that the complainant intentionally absented herself from the proceedings of trial only to prolong the same and to drag the accused/respondents in a protracted trial. So, the learned trial court was justified in passing the impugned order and finally craves that the instant appeal be dismissed.
6. Mr. Humayoun Aslam, learned Deputy Prosecutor General candidly conceded to the remand of the case as he is of the view that the impugned order is legally not sustainable.
7. Having heard the representatives of the parties concerned and perused the available record we feel that before proceeding further it would be advantageous to reproduce the text of Section 247 of the Code of Criminal Procedure, 1898, that reads as under:-
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 reason he thinks proper to adjourn the hearing of the case to some other day: Provided that, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance, and proceed with the case: Provided further that, nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non-compoundable.
8. Bare reading of Section 247 of the Code of Criminal Procedure, 1898, especially its second proviso makes it clear that discretion provided under this provision of law is to be exercised (i) by the Magistrate; (ii) only in cases of non-cognizable or compoundable offence which reflects the intention of legislature behind the non-availability of similar provision of law in Chapter XXII-A of the Code ibid that provides procedure for trials to be conducted by the Sessions Courts. When the law does not empower the Court in sessions cases to dismiss the complaint as provided under Section 247 Cr.P.C, then how the learned trial Court in the instant case could exercise the discretion.
Needles to mention here that when a thing is provided to be done in a particular manner, it is to be done in that manner and if it is not so done, it is illegal. It is crystal clear that the legislature in its wisdom did not intend to empower the Sessions Court, seized with the trial of cases of cognizable nature, to exercise the powers similar to the powers available under Section 247 Cr.P.C to the Magistrates. There is no cavil about the law that if any private complaint case is pending before learned Sessions Court that should be dealt in accordance with the procedure laid down in Chapter XXII-A of the Code of Criminal Procedure, 1898 and not at all in the manner as was erroneously adopted by the learned trial court.
9. For what has been discussed above, we are of the considered opinion that the provisions contained in Section 247 Cr.P.C cannot be exercised in sessions trials, therefore, the instant appeal is allowed, the impugned order dated 05.11.2002 being illegal is set aside and matter is remanded to the learned trial Court for further proceedings in accordance with law from the stage of trial prior to the passing of impugned order.