This is a revision petition against the order of Mr. Salim Akhtar, Additional District Magistrate, Lahore, dated 25th of April 1964, whereby the order of discharge passed by Malik Sarfraz Ahmad, Magistrate First Class on 10th of January 1964, is respect of Taj Din accused was upheld.
2. The petitioner before me is the complainant in the case. It appears from the file that the complainant had filed a complaint against the respondent under section 406 of the Pakistan Penal Code. The case changed hands four times. When it came to the Court of Malik Sarfraz Ahmad, some evidence had already been recorded by some other Magistrate. The respondent claimed de nevo trial and the evidence of four witnesses was recorded. A charge had already been framed against him by another Magistrate. It is, however, not denied that some other evidence was yet to be recorded when on 10th of January 1964, the case was called. The complainant, and the accused were found absent. The learned Magistrate thereupon ordered the discharge of Taj Din under section 259 of the Code of Criminal Procedure. The complainant then filed a revision petition before the learned District Magistrate which, as stated earlier, was dealt with by the learned Additional District Magistrate who upheld the order of the Court below. The learned A. D. M. Was of the opinion that since the order of discharge had been made after the framing of the charge, the order, in effect, was an order of acquittal which could only be set aside by filing an appeal by the Government in the High Court under section 417 of the Code of Criminal Procedure.
3. At the hearing of this revision petition Mr. F. M. Anwari, the learned counsel for the respondent, has adopted the argument of the learned Additional District Magistrate and in support of his contention has relied on the case of Sundar Singh and others v. Mst. Bhayan and others (AIR 1921 Lah. 283 (1)).
4. It is urged by the learned counsel for the complainant --petitioner that , the order was not an order of acquittal but had been passed by the trial Court under a misconception of the legal position that in a complaint case the complaint has to be dismissed in the absence of the complainant. It is pointed out that in a cognizable case it was the duty of the Court to proceed with the case notwithstanding the absence of the complainant.
5. Mr. Qamar-ud-Din, the learned counsel appearing for the State supports this contention.
6. In my view, this contention must prevail. The order o the trial Court was not an order of acquittal but it was an order o discharge passed in ignorance of the legal position. Some evidence had yet to be recorded and the case was to be concluded. The authority relied upon by Mr. Anwari is clearly distinguishable. In that case the entire evidence had concluded and the learned Magistrate after discussing the evidence and giving good reasons had directed the discharge of the accused. It was held in the circumstances of the case that this was in fact an acquittal and could only be set aside on appeal. The facts of the case which is before me are quite different. It is clear that the learned Magistrate dismissed the case for non-prosecution and ordered the discharge of the accused. There was no discussion of evidence part of which is yet to be recorded. I, therefore, find that the order of discharge in favour of the respondent was not warranted law. It was not an order of acquittal. I set aside the order of the trial Court as well as that of the Additional District Magistrate.
The case shall now go back for further trial.