MUHAMMAD AZAM KHAN, J.
1. Through the instant Appeal, the Appellant/Complainant has assailed the Order dated 25.10.2024 ("Impugned Order") passed by the learned Additional Sessions Judge-IX, Islamabad-West ("Additional Sessions Judge") whereby the Complainant under Section 200, Code of Criminal Procedure, 1898 ("Cr.P.C") filed by the Appellant/Complainant has been dismissed for non- appearance of the Appellant/Complainant and for non-compliance with the persistent orders of the Court.
2. The brief facts of the case in hand as per the contents of the Appeal are that the Appellant/Complainant filed a Private Complaint under Section 200, Cr.P.C against Respondent No. 1 before the learned Additional Sessions Judge (West), Islamabad. The said Complaint was at preliminary stage and the Appellant/Complainant was given a last opportunity to record his cursory statement, however, he did not appear before the learned Court due to the illness of his wife. The learned Additional Sessions Judge vide Impugned Order dismissed the Complaint for non-appearance of the Complainant and for non-compliance with the persistent orders of the court, which mandated the recording of his cursory statement. Being aggrieved of the Impugned Order, the Appellant/Complainant has filed the instant Appeal.
3. The learned counsel for the Appellant/Complainant argued that the case was at preliminary stage and there was no other party whose rights could have been affected by allowing the adjournment on a most appropriate ground; that the Complaint should have been decided on merits instead of knocking out the same on technical grounds alone; that the Impugned Order is against the law, facts, and principles of Administration of Criminal Justice; that the learned Additional Sessions Judge did not apply its independent judicial mind and wrongly dismissed the Complaint; that the Impugned Order has resulted into grave miscarriage of justice; and that the Impugned Order is based on misreading and non-reading of the facts. Lastly, the learned counsel prayed that instant Appeal may kindly be accepted, Impugned Order may be set aside, and observation may kindly be made for filing of second complaint.
4. On the other hand, learned ADPP vehemently resisted the instant appeal and prayed for its dismissal.
5. I have heard the learned counsel for the parties and have also perused the record with their able assistance.
6. After hearing arguments from both sides, two moot questions arise in this case: - a. Whether the Complaint under Section 200, Cr.P.C could be dismissed for non-prosecution or not?
7. In this regard, it is important to determine at what stage the Complaint was when it was dismissed for non-prosecution. A review of the record shows that the Private Complaint was filed, but the cursory statement of the complainant had not yet been recorded due to his non- availability, indicating that the matter was still at the preliminary stage. The Appellant/Complainant failed to appear before the learned Additional Sessions Judge on the scheduled date for recording his cursory statement. As a result, the Complaint was dismissed due to his non-appearance and failure to comply with the orders of the Court. Since the Complaint was dismissed at the initial stage, it had not yet been processed under Section 204, Cr.P.C., and no notice or summons had been issued to the accused. Section 203, Cr.P.C. is pertinent here and is reproduced as follows:- "203. Dismissal of complaint. [The Court] before whom a complaint is made or to whom it has been transferred [or sent] may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry if any under section 202 there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing".
In this regard, the other relevant Section on dismissal of complaint for non-prosecution is Section 247, Cr.P.C which is reproduced 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. Section 247, Cr.P.C ibid reveals that if the summons has been issued to the accused and case is fixed for the attendance of the accused and if the complainant fails to appear before the Court, the Court shall dismiss the case for non-prosecution and will acquit the accused from the case.
However, in the proviso of Section 247, Cr.P.C, it is mentioned that this Section will not apply where the offence is either cognizable or non-compoundable. When the summon is issued and the case is fixed for the attendance of the accused, the Court can dismiss the case for non-prosecution due to the non-appearance of the complainant and consequently acquit the accused. In the instant case, no process was issued to the accused for attendance. When the Court does not dismiss the Complaint under Section 203, Cr.P.C and takes cognizance of an offence under Section 190, Cr.P.C then it issues a process under Section 204, Cr.P.C to the accused for procuring attendance and to face the trial, if there are sufficient grounds for proceeding in the opinion of the Court. Section 204, Cr.P.C is regarding the issuance of process which is reproduced as under: - "204. Issue of process. (1) If in the opinion of a [Court] taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be one in which, according to the fourth column of the Second Schedule a summons should issue in the first instance, [it] shall issue its summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, [it] may issue a warrant, or, if [it] thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such Court or (if [it] has no jurisdiction [itself] some other Court having jurisdiction.
(2) Nothing in this section shall be deemed to affect the provisions of Section 90.
(3) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the [Court] may dismiss the complaint".
As the process was not issued to the accused by the learned Additional Sessions Judge, therefore, Section 247, Cr.P.C is not applicable in the instant case. However, the words "if any" used by the legislature in the phrase "after considering the statement on oath (if any) of the complainant" allows the Court to dismiss a complaint under Section 203, Cr.P.C. at the preliminary stage even if the cursory statement of the complainant is not recorded; nevertheless, in doing so the Court shall briefly record the reasons for that. The conclusion of this question is that the Court can dismiss the Complaint for non-prosecution under Section 203, Cr.P.C as the Court was empowered to do that if complainant does not appear before the Court. b. If the first complaint has been dismissed for non-prosecution whether a second complaint under Section 200, Cr.P.C can be filed before the same Court regarding the same occurrence or not?
9. In this regard, it is said that Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973, and Section 403, Cr.P.C are relevant regarding the reinstitution of cases. For ready reference, relevant portion of Section 403, Cr.P.C and the Explanation thereof is reproduced as under: - "403. Persons once convicted or acquitted not be tried for the same offence. (1) A person who has once been tried by a Court of Competent Jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not to be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.
Explanation. The dismissal of a complaint, the stopping of proceedings under section 249 [or the discharge of the accused] is not acquittal for the purposes of this section."
10. The sub-section (1) of Section 403, Cr.P.C says that a trial of a person cannot be conducted again for the same offence if he is already tried by the court and convicted or acquitted of such offence. It is trite that the trial of an accused commences when the accused is summoned and charge is framed against him. The case of the Appellant/Complainant does not fall under Section 403, Cr.P.C as neither the accused was summoned, nor the charge was framed against the accused resultantly he was neither acquitted nor convicted.
11. Furthermore, in the explanation of Section 403, Cr.P.C, it is mentioned that the dismissal of a complaint, and the stopping of proceedings under Section 249, Cr.P.C. [or the discharge of the accused] is not acquittal for the purposes of this Section. As the dismissal of the complaint does not amount to acquittal of the accused, therefore, Section 403 Cr.P.C will not be applicable in the instant case. Reliance in this regard is placed on Muhammad Jawad Hamid and another Vs. Mian Muhammad Nawaz Sharif and others, 2019 P Cr. LJ 665 Lahore, Zahoor and another Vs. Said-ul- Abrar and another, 2003 SCMR 59 and Azmat Bibi and another Vs. Asifa Riaz and 3 others PLD 2002 Suprem e Court 687, Muhammad Akram Vs. Haji Mir Aziz Ahmed and 3 others, 2000 P Cr.LJ 489, Saeed Ahmed Versus Abdul Shakoor and another, 2005 P Cr. L J 1631 and Abdul Majid Versus MD. Mansur Ali and 14 others, 1969 P Cr. L J 692. The relevant portion of the judgment passed in the case of Muhammad Jawad Hamid and another Vs. Mian Muhammad Nawaz Sharif and others (supra) is reproduced hereunder: - "----S. 203---Private complaint, dismissal of---Order passed under S. 203, Cr.P.C.---Scope-- - Such order could not be held as autrefois or statutory acquittal---At the most, dismissal of the complaint as a whole or non-summoning of some of the persons complained against may have the effect of discharge-- Complainant, at his own option, may file a subsequent fresh complaint on same allegations by adding some new facts/grounds and mentioning any new material/evidence which earlier were not in his knowledge or the complainant was not in a position to bring them on record. Mst. Robina Rashid v. Farrukh Amin PLD 2011 FSC 121; Ibrar Hussain Shah v. Syed Waris Shah 2015 PCr.LJ 784 and Tariq Javed v. Hom Purkash 2018 PCr.LJ 771 ref."
The relevant portion of the judgment passed in the case of Zahoor and another Vs. Said-Ul-Abrar and another (supra) is reproduced hereunder: - "(b) Criminal Procedure Code (V of 1898)-- ----S.203---Dismissal of complaint---Entertainment of second complaint not barred---Dismissal of a complaint under 5.203, Cr.P.C. does not bar the entertainment of a second complaint on the same facts in exceptional circumstances, e.g., where the previous order was passed on an incomplete record, or on a misunderstanding of the nature of the complaint, or it being manifestly absurd, unjust or foolish or where new facts had been adduced which could not, with reasonable diligence, have been brought on the record in the previous proceedings---Where however, a decision has been given against the complainant upon a full consideration of his case, giving another opportunity to him or any other person for having his complaint enquired into, cannot be in the interest of justice."
The relevant portion of the judgment passed in the case of Azmat Bibi and another Vs. Asifa Riaz and 3 others (supra) is reproduced hereunder: - "(d) Criminal Procedure Code (V of 1898)--- ----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 S.403, Cr.P.C. & Art.13 of the Constitution were not applicable in circumstances."
12. In the present case, since the proceedings were at a preliminary stage and the Complaint was dismissed under Section 203, Cr.P.C, this does not constitute an acquittal of the accused. Therefore, an appeal under Section 417 (2-A), Cr.P.C cannot be filed. However, the Appellant/Complainant is free to file a second complaint before the same forum, if so advised, as it is not prohibited under Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973, or Section 403, Cr.P.C.
13. For what has been discussed above, the instant Petition for Special Leave to Appeal being not maintainable is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.