' The petition has arisen out of criminal proceedings lodged against Fazal Husain and Nazir Hussain, respondents, in a privat complaint under sections 341, 354 and 506 of the P,enal Code, in the Court of Sub-JudGE Magistrate 1st Class, Bhithber.
2. Mst. Sardar Begum lodged a private complaint in the trial Court on May 27, 1985. On making preliminary inquiry, process was issued to the accused to face the charges attributed to them. The evidence of complainant was closed on July 29, 1985 when the case was adjourned to August 17, 1985 for statement of the accused under section 342, Criminal Procedure Code, On October 12, 1985, the accused were examined and they pleaded not guilty and also desired to lead evidence. The defence evidence was closed on November 3, 1985 and the case was adjourned to 18th of that moth for arguments. No arguments were addressed on that date and the case was adjourned to November 28, 1985. On that date, the Presiding Officer was on leave, as such the case was adjourned to December 14, 1985. On that date, the complainant was absent and the case was adjourned to December 16. On that date again the complainant was absent. The trial Magistrate, on account of absence of the complainant, dismissed the complaint and acquitted the accused.
The order of acquittal is challenged in the present petition as the State has declined to prefer an appeal against the acquittal order and the District Magistrate Mirpur has issued a certificate to that effect on March 6, 1986.
3. The petitioner has ascribed deception leading to acquittal of the accused as, according to her, the Clerk of the Court, on November 28, 1985, adjourned the case to December 16, 1985 and announced this date in presence of the parties but instead of entering the next date of hearing as December 18, he entered December 14, 1985 on the order sheet. It was on account of this reason that the complainant failed to appear on December 14 and even subsequently on December 16, 1985 when the complaint was dismissed and the accused were acquitted. December 18, 1985 happened to be a closed day, as such the complainant appeared in the Court on December 19, 1985 when she was told that her complaint was dismissed for want of prosecution.
4. Raja Imdad Ali Khan, the learned counsel for the petitioner contended that the Clerk of the Court was liable for telling a wrong date to the petitioner and, in consequence, securing acquittal of the accused. He alleged connivance to the accused-respondents and the staff of the trial Magistrate.
The contention was opposed by Chaudhry Ali Muhammad, representing the accused-respondents.
5. The facts listed above disclose that the complainant closed her evidence on July 29, 1985 and thereafter she keenly prosecuted her case by appearing alongwith her counsel on every date. On November 28, 1985 when the case was to be argued on merits, the trial Magistrate was on leave, as such the case was adjourned to December 14, 1985. On this date, no one appeared on behalf of the complainant whereas accused were present. The learned Magistrate instead of dismissing the complaint and acquitting the accused, felt advised, but without recording any reason, to adjourn the case. On December 16, again no one appeared on behalf of the complaint while the accused and their counsel were present and the complaint was dismissed for want of prosecution. The petitioner has seriously challenged the propriety of the order dated December 14 and December 16, 1985. According to her, the Clerk of the Court disclosed the next date of hearing as December 18, 1985 whereas he recorded the date as December 14, 1985. Her claim is supported by documentary evidence consisting of the diary of her counsel and an affidavit of Khawaja Muhammad Amin, Pleader who represented her in the trial Court. According to the diary of the counsel, on November 18, 1985 the case was adjourned to December 18, 1985 for arguments. This date of hearing is recorded in the diary both on November 28, 1985 and December 18, 1985. In his affidavit, Khawaja Muhammad Amin has deposed that on November 28, 1985, the Clerk of the Court announced the date of hearing as December 18,
185. He entered the said date in his diary and also advised his client to attend the Court on that date. December 18, 1985 happened to be a closed day and the next day when the Court opened, he and his client appeared in the Court but they were told that the case had already been dismissed on December 16, 1985. The allegation ascribed by the petitioner in the grounds of petition is supported by the aforesaid evidence and the same has not been rebutted by the opposite aside. In the circumstances, this Court is left with no choice except to believe in the reason described by the petitioner for her non-appearance on the relevant date which led to dismissal of her complaint and acquittal of the accused-respondents.
6. The relevant provision of law applicable to the proposition under consideration is described under section 247 of the Criminal Procedure Code. It postulates that if the summons has been issued on complaint, and upon the day appointed for the appearance of the accused or any day subsequent thereto 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. The conditions listed in this section squarely apply to the present case as it was a case of complaint and the accused were also present and facing trial in consequence of summons issued on the complaint.
The second part of the section empowers the Magistrate to acquit the accused if the accused are already before the Court and the complainant fails to appear. The discretion conferred on the Magistrate, nevertheless, further empowers him to adjourn the hearing of the case to some other day if he is satisfied that there is seine reason for doing so. It is quite clear from the language of the section that the Magistrate or the Court, in case of absence of the complainant after issuing process to the accused, is vested with discretion either to acquit the accused or to adjourn the hearing of the case to some other day. It is a celebrateo rule of dispenation of justice that the discretion vested in Court must be exercised in.a judicial fashion keeping in view the interests and ends of justice and that it should not be exercised arbitrarily or capriciously. This suggests that while exercising discretion under section 247 of the Code of Criminal Procedure or other provisions of law prescribed in the Code, the Court has to exercise its discretion in the light of circumstances of each case and that it must be satisfied that its exercise of power rested on the principles of justice.
7. The discretion conferred on a Magistrate or Court under section 247, Criminal Procedure Code, is a check and safeguard against malicious, vexatious, or futile criminal litigation. Intention of law appears to b that in order to establish bona fide of attribution made against the accuse persons, the complainant must show his interest and desire to seek justice by putting up his appearance alongwith the accused persons in the Court. In order to keep the balance of inconvenience caused to the accuse persons by attending the Court, complainant is also enjoined upon t put up his appearance on each day of hearing. A strict compliance of law, therefore, provides a guarantee that no false, malicious, concocted 0. Vexatious complaint shall be lodged merely to drag the accused person in the Court for a pretty long time. On this premises, it is essential to examine the importance of duty of personal appearance in Court imposed on a complainant. The other aspect of the proposition is that a complainant, in order to bring home guilt to the accused persons has to lead his entire evidence and thereupon the duty imposed upon him is discharged. It is then that the onus shifts on accused to lead evidence in defence, if any, and thereafter it is the Court or the Magistrate who has to deliver the judgment in the case. The law prescribes just a condition of appearance of a complainant in a criminal proceeding but this is not an absolute rule. It is to be construed by knowing intention of the legislature from the language used in section 247, Criminal Procedure Code, keeping in view the duty to be discharged, in completion of trial, by the complainant. The main object apart from a saferguard against false, frivolous and mala fide prosecution, is to ensure expeditious. Trial by taking all action in that direction. Therefore, when prosecution evidence has been completely led and no further action is desired to be taken by the complainant in completion of the trial, thereafter his presence in my estimation is not of any importance. Nevertheless, the discretion still vests with the Magistrate or the Court to direct the complainant to appear in the Court even after discharge of his duty and, in case of such a direction, the complainant is duty bound to comply with the direction of the Court. In present case, as noticed earlier, the complainant, who happened to be a village woman, had fulfilled her duty by leading her entire evidence. It is fair to state here that the complainant appeared on every date of hearing, even after completion of her evidence, despite the fact that the case was ripe and fixed for final arguments. Her keen interest and vigilence is further manifested from the fact that on December 19, 1985 when she learnt of dismissal of her complaint and acquittal of the accused she acted promptly in obtaining copy of the order and necessary certificate from the District Magistrate, to prefer petition in this Court. There is, therefore, no apparent lapse on the part of the complainant to lend cause to believe that she was not keen and interested to prosecute her case.
8. The revisional powers conferred on this Court under the Code of Criminal Procedure can be exercised to ensure substantial justice done to the parties. Whenever it comes to the notice of this Court that by an illegal or irregular action of a subordinate Court, injustice is done to a party, High Court, in exercise of its revisional powers, is competent to set aside such an illegal action of the subordinate Court by passing an appropriate order including an order of remand of the case to the subordinate Court for its fresh decision under law. In present case, as stated earlier, it is evident that the trial Magistrate had entire evidence of the parties before him, as such, knowing that the trial was complete and that the complainant was a rustic village woman who, according to the record of the trial Court, keenly prosecuted her case and never absented herself on any occasion, should have, if in his opinion presence of the complainant was essential, sent for her or otherwise should have decided the case on merits. The order of dismissal of complaint on account of absence of the complainant, was not justified in any manner. The order otherwise appears to be unwarranted as on the previous date, in identical situation, the complaint was not dismissed but was adjourned to next date. Moreover, the state of facts described by the petitioner resulting in misleading her from appearing on the date of hearing, is a strong leading factor to set aside the impugned order. In an identical situation, in Hidayatullah v. Maqbool Hussain and others (1) Mr. Justice Muhammad Sharif set aside the order of dismissal of complaint and acquittal of accused as in opinion of the learned Judge, section 247 of the Criminal Procedure Code should not be applied where the complainant has done all that was necessary for him to do to establish his case.
In that case too, the evidence of prosecution and defence was closed and the case was posted for final arguments when on ac:ount of absence of the complainant and his counsel, the complaint was dismissed and the accused were acquitted. The learned Judge, on making analytical survey of case-law on the point, recorded the following observations:- "Personally I am of the view that section 247, Cr. P. C. Should not be applied where the complainant has done all that is necessary for him to do to establish his case and that a complaint case ought not to be dismissed for his non-appearance on an adjourned date unless his attendance is in the opinion of the Magistrate specially required on that day. The power of dismissal must be exercised with discretion ..............Moreover, the case had reached a stage where its dismissal cannot be said to be the judicial exercise of the trial Court's discretion. I, therefore, accept the revision petition, set aside the order of trial Magistrate............................."
The view expressed in Hidayatullah's ease is fair and just. I, therefore, concur with the aforesaid observation and hereby allow the petition and set aside the order of dismissal of complaint and acquittal of the accused The complaint is restored to the file of the trial Magistrate for decision on merits of the case. The accused-respondents, present in the Court, are directed to appear before the trial Magistrate on June 12, 1986.
P I. D 1961 Mad I & K 86