This petition under section 561-A, Cr.P.C. By the accused persons Haibat Khan and Abdul Aziz Shah has arisen in the following circumstances.
2. Against the petitioners and three others, Bashir Ahmad Baig, respondent, lodged an F.I.R., being F.I.R. No. 163 dated 30-7-1983 under sections 506, 323 and 148 of the P:P.C., alleging that on 23-7- 1983 at about 1.30 p.m. The petitioners and their co-accused had given beating to him for complaining against him before the police that they would not leave him alive. The case was investigated and was cancelled on 12-8-1983. Bashir Ahmad Baig, respondent (hereinafter to be called complainant) then filed a complaint under sections 506, 323 and 149 of the P.P.C. In the Court of the learned Illaqa Magistrate on 30-8-1983. The learned Magistrate recorded preliminary evidence and summoned the petitioners and their co-accused by his order dated 13-11---1983. The petitioners and their co -accused appeared before the learned Magistrate on 21-10-1984, when the complainant failed to appear and the learned Magistrate acquitted the petitioners and their co - accused. It is obvious that in so, he acted under section 247, Cr.P.C. The complainant filed a revision doing against the learned Magistrate's order but the learned Additional petition Sessions Judge, Mianwali, dismissed the revision petition by his order dated 15---11-1984 mainly on the ground that against the order of the learned Magistrate dated 21-10-1984, an appeal lay under section 417, subsection (2), Cr.P.C. And the revision petition before him was not competent. It was argued before the learned Additional Sessions Judge that as the charge had not yet been framed against the petitioners and his co-accused, the order was not an order of contention was based upon the second proviso to section 247, Cr.P.C. In dealing with that contention, the learned Additional Sessions Judge observed that the embargo contained in second proviso of section 247 of Cr.P.C., does not come in because that proviso is attracted only at the stage when the accused has been charged, meaning thereby that if the accused has been charged for an offence in complaint case which is either cognizable or non-compoundable and the complainant fails to appear on the date, fixed for hearing of the case when, of course, the complaint cannot be dismissed, but the same can be dismissed before the stage of framing the charge if the complainant does not put up appearance".
3. The complainant then filed the present complaint on s1-7-1985 again on the same facts. As, to the previous complaint, it was said that the complainant was prevented from appearing on 21-10- 1984 because he was seriously sick. The learned Magistrate recorded the preliminary evidence and by his order dated 11-6-1985 again directed the petitioners and their co-accused to be summoned for 15-9-1985.
4. Against this order of the learned Magistrate, the petitioners fled revision petition before the Sessions Court. Before the learned Additional Sessions Judge, who heard the revision petition, the contention of the petitioner was that the previous order dated 21-10-1984 acquitting them, was made under section 247, Cr.P.C. And as that order had attained finality, section 403, Cr.P.C applied and the petitioners could not be tried again for the same offence. The learned Additional Sessions Judge was, however, of the view, and in taping that view, he differed with his learned predecessor's view taken in his order dated 15-11-1984, that "if the offence is cognizable and non-compoundable, the complain--t cannot be dismissed in default. The relevant section 403 comes into play one when a conviction or acquittal is duly recorded by a Court of competes jurisdiction. In the case in hand, the, order of dismissal of complaint was quit; illegal and it was not an order which was passed after the appraisal of evidence".
5. Now, a plain reading of the F.I.R., the first complaint as also the present complaint shows that sections 148 and 506, P.P.C. Were not attracted. Section 148, P.P.C. Punishes a person guilty of rioting, being armed with deadly weapon or with anything which, used as a weapon of offence, is likely to cause death. Her the petitioners and their co-accused were not alleged to be armed with any weapon at the time of the incident. Similarly, the threat to kill which threw according to the complainant, attracted the provisions of section 506 P.P.C. Was made in this way that the petitioners and their co-accused started beating the complainant, dragged him by his hair saying that they would teach him a lesson for making complaints against them to the S.P. And that they would not leave him alive. Thus, the threat was accompanied by beating and dragging and could not therefore, have constituted an independent offence under section 506, P.P.C.
6. That leaves the offence under section 323, P.P.C., that offence is both non-cognizable and compoundable and, therefore, section 247, Cr.P.C, applied it follows, therefore, the acquittal of the petitioners and their co-accused was one under section 247, Cr.P.C.
7. In any case, the order of the learned Magistrate dated 21-10-198: acquitting the petitioners and their co-accused had attained finality. There is n, question that that order was an order of acquittal and that under action 41" subsection (2), Cr.P.C., the remedy of the complainant lay in a petition for special leave to appeal in this Court and not in the revision petition under section 439-A, Cr.P.C.
8. That raises the question whether a second complaint on the same facts lay. Section 403, Cr.P.C.
Provides that 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 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 36, or for which he might have been convicted under section 237. Subsection (5) of section 403, Cr.P.C. Provides that "nothing in this section shall affect the provision of section 26 of the General Clauses Act, 1897, or section 188 of this Code". The explanation to the section says that the dismissal of a complaint, the stopping of proceedings under section 249 or the discharge of the accused is not an acquittal for the purposes of this section".
9. Section 247, Cr.P.C. Expressly says 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 to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything therein contained, acquit the accused, unless for some reasons he thinks proper to adjourn the hearing of the case to some other day. The second proviso to that section enacts that "nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non-compoundable". As has been seen above, the only offence which the facts of this case attracted was an offence under section 323, P.P.C. Which is non-cognizable and compoundable. Section 247 in providing for the consequence of the failure of the complainant to appear does not say that the complaint shall be dismissed; it says that the Magistrate shall acquit the accused. Then section 403, Cr.P.C. Excludes certain orders, namely, the stopping of proceedings under section 249, Cr.P.C. Or the discharge of the accused from the ambit of section 403, Cr.P.C.
And the fact that the acquittal under section 247, Cr.P.C. Is not so excluded should in my opinion inevitably lead A to the conclusion that a person acquitted under that section cannot be tried again for the same offence. This view receives support from Khan Muhammad v. Abdul Karim (PLD 1972 AJK 58) where this question was exhaustively dealt with; the view taken in that case was approved in Hawaldar Maj. Hassan Muhammad v. Muhammad Nazir Khan (PLD 1957 AJ&K 120). I respectfully and gratefully adopt that view.
10. For these reasons, the petition is accepted and the proceedings against the petitioners and their co-accused arc quashed.