ABDUL HAMEED BALOCH, J.---Through this common order we intend to dispose of Criminal Acquittal Appeals Nos. 337 to 340 of 2019 and Nos. 405 to 429 of 2019, as in all these appeals common law point involved, whereby the complaints filed under section 134 of the Elections Act, 2017 against the respondent No. 1 of above appeals were dismissed in default.
2. Precise facts of the case are that the appellant/complainant filed complaints under section 134 of the Elections Act, 2017 on account of commission of offence of illegal practice against the respondent No. 1 before District Judge, Quetta, which was transferred to the files of learned Additional District Judge-V, Quetta (trial court). On receipt of complaints the learned trial court issued notices to the respondent No. 1. During proceeding due to non-appearance of the complainant all the above complaints were dismissed by the trial court vide order dated 22nd July, 2019 (impugned order). Hence instant criminal acquittal appeals were filed with the prayer: It is, therefore, respectfully prayed that impugned order dated 22.07.2019 passed by learned Additional District Judge-V, Quetta may kindly be set aside and restore the complaint under section 134 of Elections Act, 2017 on account of commission of offence of illegal practice by way of remanding it back to learned Additional District Judge-V, Quetta for its decision on merits, in the interest of justice, equity and fairplay."
3. Heard the learned counsel for the appellant and learned Additional Prosecutor General and perused the material available on the record. The trial court dismissed the complaints due to non- appearance of the complainant. The complaints were filed by the appellant under section 134 of the Elections Act, 2017 (Act 2017), which are exclusively triable by Sessions Court as provided under section 190 of the Act 2017. It would be appropriate to reproduce the referred Section.
"190. Cognizance and trial.---(1) Notwithstanding anything contained in any other law but subject to section 193, an offence under this Chapter shall be tried by the Sessions Judge and any aggrieved person may, within thirty days of the passing of the final order, file an appeal against the order in the High Court which shall be heard by a Division Bench of the High Court.
(2) The proceedings against a person for being involved in corrupt or illegal practice may be initiated on a complaint made by a person or by the Commission but if a complaint made by the person proves to be false, based on bad faith or is made for any ulterior motive to provide benefit to another person, the complainant shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to fifty thousand rupees or with both.
(3) The Commission may direct that the summary trial of an offence under this Act may be conducted in accordance with the provisions of Chapter XX of the Code.
Explanation.---In this section, "Sessions Judge" includes an Additional Sessions Judge."
4. Criminal Procedure Code is applicable for enquiry, trial of an offence under Elections Act, 2017, as enumerated under section 199 of the Act, 2017. The Section is reproduced as under for ready reference: "199. Provisions of the Code to apply.---In the matters relating to reporting, investigation, summons, warrants, enquiry, trial of an offence or other ancillary matters where any provision or any sufficient provision does not exist in this Act or the Rules, the provisions of the Code shall apply in the matter."
5. Chapter XX of the Code provided procedure for trial of case by a Magistrate, wherein under section 247, Cr.P.C. the Magistrate is empowered to dismiss the complaint on non-appearance of complainant with certain restriction. Where the offence of which the accused is charged is either cognizable or non-compoundable, the court could not dismiss the complaint on non-appearance.
Chapter XX of the Code relates to trial of Magistrate. Whereas Chapter XXII-A of the Code relates to the trial by Sessions Court or High Court. The legislation did not empower the Sessions Court to similar power as available in section 247, Cr.P.C. It would be appropriate to reproduce section 247, Cr.P.C.
"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."
Reliance is placed on the case of Yahya Bakhtiar v. Mir Shakeel-ur-Rehman, PLD 1998 Quetta 37.
It was held in the case Nasreen Akhtar v. Mian Abbas, SHO 2016 PCr.LJ 578: "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. Needless 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."
In view of the above, Criminal Acquittal Appeals Nos. 337 to 340 of 2019 and Nos. 405 to 429 of 2019 are accepted. The impugned orders dated 22nd July, 2019 passed by learned Additional Sessions Judge-V, Quetta, being illegal are set aside and matters are remanded to the trial court with direction to proceed with the same on merits in accordance with law.