1. This it an application for revising the order of the Additional District Magistrate, Hyderabad upholding the order of the learned Civil Judge & F.C.M. Hyderabad discharging the respondent No. 2 in a criminal case under section 406 P. P. C. Instituted against him on a complaint filed by the applicant.
2. The facts of the case are that on 20-10-1970, criminal case was regis--tered against the respondent No. 2 and his brother Abdul Ghaffar (since deceased) under section 406 read with section 34 of the P. P. C. On the complaint of the applicant. The applicant's allegation in the complaint was that he ran a foundry at Makishah, Hyderabad. He was however invited by the respondent No. 2 and his brother Abdul Ghaffar to shift to their premises to earn more profit which he did on the assurance that respondent No. 2 would equip his foundry fully and brought his pig iron moulds, patterns, raw materials and sanitary fittings to the plot of the respondent No. 2. After having brought his things he found that the respondent No. 2 had not adequately equipped the Foundry and was carrying on his work on borrowed equipment. The petitioner became dis-- appointed but was assured by the respondent No, 2 that the latter will soon equip the foundry fully and asked him to wait. The petitioner accordingly left all his things with the respondent No. 2 and came back to Karachi and awaited the intimation from the respondent No. 2. Not hearing from are respondent, he went to Hyderabad to find that instead of equipping the foundry, the respondent No. 2 and his brother were using all his things. He protested with the respondents who offered him Rs. 15 per day as rent for the use of his things which the petitioner refused and demanded Rs. 50 per day. This infuriated the respondent No. 2 and his brother Abdul Ghaffar who turned the petitioner out. The petitioner thereupon filed a complaint with the Cantonment Police Hyderabad, from where by consent of both the parties, the case was referred to the Nawab Muzaffar Hussain for arbitration, who gave his award In favour of the petitioner. The res--pondent No. 2 still did not return his things. Consequently, the petitioner lodged a complaint with C. I. A. Police who challaned the respondent. No. 2 and his brother Abdul Ghaffar on 24-4-1970 in the Court of Magistrate after recovering from them the articles of the petitioner worth Rs. 17,68250 which were handed over to the petitioner on supurdginama.
3. After the respondent No. 2 and his brother were challaned on 24-4-1970 the case came up before the Court on about 40 hearings without making any progress. On almost all the hearings P.Ws, did not attend the Court, on some dates the complainant was not present, and on some dates the Presiding Officer was busy on out door duty. Finally the case came up before the Court on 1-11-1972.
4. On this date also, neither the complainant nor the witnesses nor the prosecutor were present, For the complainant, however, an application made by his Advocate was presented to the Court for excusing the absence of the complainant on the ground of sickness. The learned Magistrate taking the view that although sufficient time had been given to the prosecution, it had not examined any witness and the accused could not be dragged in Court for indefinite period, discharged the accused respondent No. 2 under section 253 Cr. P. C., the case having already abated against Abdul Ghaffar who died curing the pendency of the case. Aggrieved by the order of discharge the complainant filed a revision before the Addi--tional Magistrate for setting aside the discharge order which was dismissed. Hence this second revision to this Court.
5. Mrs. Salima Nasiruddin, the learned counsel for the applicant, raised the following contentions in support of the revision application:
(1) That the case instituted against the respondent No. 2 was a State case. The applicant complainant had been attending tile Court regularly, but for no fault of his, applicant's evidence was not recorded by the learned Magistrate. Even on the last date of hearing viz. 1-11-1972, the applicant had sent an application to the Court for adjournment on account of his illness so that the applicant was diligently perusing the case and could not be blamed for the delay in trial of the case.
(2) That the learned Magistrate acted illegally in discharging the res--pondent No. 2 under section 253 Cr. P. C. Is a warrant and non-compound--able case instituted on behalf of the State due to non-attendance of the witnesses without securing their presence by coercive process provided by law. In support the learned counsel relied upon the 1974 Pakistan Criminal Law Journal 58 and 1974 Pakistan Criminal Law Journal 26.
6. The learned counsel for the respondent No. 2 opposing the application in reply contended that the prosecution had been launched on 20-10-1970. Thereafter the case had come up before the Court on 40 hearings but on most of the hearings P. Ws. Were not present and on 26 hearings the complainant remained absent. On the final date of hearing also neither the complainant, nor the witnesses nor even the prosecutor was present so that the learned Magistrate was justified in discharging the accused, an old man, who had been dragged in Court. The learned counsel next contended that the trial Court having come to the finding that it was a fit case for discharge and the discharge order having been maintained by the learned Additional District Magistrate, the Court ought not to interfere with the order in its revisional jurisdiction. In support the learned counsel relied upon A. I. R. 1928 Cal. 1081, A. I. R. 1933 Lah. 561 and A. I. R. 1939 Sind 71.
7. The contentions raised by the learned counsel for the applicant are well founded. It was a State case involving property worth more than Rs. 20,000 out of which property worth Rs. 17,862.50 had been already recovered by the police and handed over to the complainant applicant on supurdginama. The case diary shows that although the complainant was present on several dates of hearing, his statement was not recorded by the Court which it was duty bound to do under section 252 (1) Cr. P. C. The case diary further shows that an application for discharging the amount was moved which came up before the Court for arguments on three consecutive hearings viz. 21- 6-1972, 28-6-1972 and 20-7-1972. In each of these dates the complainant was present but the Court instead of recording his statement went on to adjourn the case for hearing of the arguments on the application. It is not understandable as to what arguments could have been heard and accepted when the statement of the complainant who was present had not been recorded. The reasons assigned by the Magistrate for discharging the respondent No. 2 are that neither P. Ws. Nor any one on behalf of the State was present and that the case had been lingering on for two years.
8. But who is responsible for it? Surely, the trial Court itself. What prevented it from recording the statement of the complainant who in fact was the most important witness and was present before the trial Court on number of hearings. If the P. Ws. Were not attending the Court, the Court was not bereft of powers to secure attendance of the witnesses by coercive process ref issuing bailable warrants or failing which non-bailable warrants. The case diary on the other band shows that after issuing bailable warrants against the P. Ws, on few dates, it reverted to summons on the last two dates before discharging the accused Case diary also shows that the prosecutor had been present before the trying Court on almost all the hearings so that if the prosecutor happened to be absent on one particular hearing, it could not be made a reason for discharging the accused in a warrant, cognizable and non-compoundable case instituted on behalf of the State. True, the trying Magistrate discharged the accused respondent No. 2 out of exasperation due to the non- attendance of witnesses and the prosecutor, but this situation was brought about by the Court itself for which the complainant could not be deprived of his right to the allegations made by him in the complaint being tried and decided. There is yet another aspect of the case which needs to be considered. The respondent No. 2 had been challaned under section 406 P. P. C. Which is cognizable and warrant case and is not compoundable. Consequently, the learned trying Magistrate in the circumstances of the case was not competent to discharge the accused under section, 253 Cr. P. C. Section 253 Criminal Procedure Code provides as under:--- "(1) If, upon taking all the evidence referred to fn section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused had been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless".
9. The impugned order does not show whether it was passed under sub--section (1) or subsection (2) of section 253, Cr. P. C. But since the order of discharge was passed before taking any evidence at all, it falls within the ambit of subsection (2) of the said section. A Magistrate is empowered C to discharge an accused under subsection (2) before taking all the evidence referred to in section, 252 (2) Cr. P. C. Provided he considers the charge to be groundless for reasons to be recorded by him. Now, the complainant had attended the Court on number of hearings but his statement was not recorded as required by section 252 (1) Cr. P. C. For which, no reason has been assigned by the Court explaining the inability. If the witnesses were not attending, the Court could issue coercive process against them which is provided by law precisely to meet such situations. There could be no justification, therefore, for the learned Magistrate to find the charge to be groundless and to discharge the accused on the ground of absence of the witnesses and the prosecutor.
10. As to the second argument of the learned counsel that the trial Court discharged the accused and the learned Additional District Magistrate having refused to set aside the discharge, this Court ought not to interfere with the order of discharge, it cannot be disputed that the High Court would be reluctant to interfere with the order of discharge in exercise of its revisional jurisdiction, but here the Court discharged the accused on the grounds which were brought about by the Court itself, the order of discharge, depriving the complainant of his rights to get justice from the Court cannot, therefore, be said to have been passed properly and in accordance with law and therefore cannot be sustained. The cases relied upon by the learned counsel are clearly distinguishable from the facts of this case and are of no help to the learned counsel as in all these cases the orders of discharge had been passed after the evidence was led.
11. For the aforesaid reasons the petition is allowed and the order passed by the Magistrate discharging the respondent No. 2 is set aside and the case is remanded for further trial under the law in the light of what has been said above in the judgment. The trial Court is directed to proceed with and decide the case without any further delay.