1. ' DR. GHOUS MUHAMMAD, J.--- This criminal acquittal appeal under section 417(1), Cr.P.C. Is directed against the order, dated 19-3-1996 passed by the learned IX Additional Sessions Judge, Karachi East (Mr. Abdur Rashid Nizamani) in private complaint Case No,849 of 1994 whereby the respondents Nos.2 to 4 were acquitted under section 247, Cr.P.C.
2. ' Briefly stated the facts of the case are that the appellant filed a private complaint in the Court of learned Additional City Magistrate IX, Karachi East (Police Station Gulshan-e-Iqbal) against one Gulzar and his three sons (respondents Nos.2 to 4) under sections 353/357/389/511/109 and 34, P.P.C. The learned Magistrate sent the complaint to the Court of Sessions Judge, Karachi East which was transferred on the file of learned IX Additional Sessions Judge, Karachi East for disposal. After recording the statement of the complainant under section 200, Cr.P.C., and preliminary enquiry as envisaged under section 202, Cr.P.C. The learned Trial Court ordered that the case may be registered for the offences under sections 353/389/511 and 34, P.P.C. And it was further ordered that process may be issued against all the four accused persons named in the complaint. In response to the process and N.B.Ws. Issued against the accused, respondent No,1 (accused) Gulzar Ahmed Shaikh appeared in Court on 11-12-1995 and the case was put off to 24-12-1995. On this date the accused were not present, therefore, the case was adjourned to 11-1-1996 for framing the charge. It is further revealed" from -perusal of the record that on 25-2-1996 application under section 265-K, Cr.P.C. Was moved on behalf of the accused for their acquittal alongwith two more applications.
3. One was for dismissal of the private complaint and the other application was under section 540-A, Cr.P.C. The learned Trial Court heard arguments on the three applications and disposed them of through a single order which is impugned in this appeal. The applications under section 265-K, Cr.P.C. As well as under section 540-A, Cr.P.C. Were dismissed but on the application for disposal of the complaint the learned Trial Court held that section 389, P.P.C. Was not applicable to the respondents Nos.2 to 4. Therefore, invoking the jurisdiction under section 247, Cr.P.C. On account of the absence of complailant/appellant the learned Trial Court acquitted the respondents Nos.2 to 4 and the complaint was dismissed as mentioned above.
4. ' I have heard Mr. I.A. Hashmi learned counsel for the appellant and Mr. Sarwar Khan learned Additional Advocate-General for State as well as Mr. Zahid Hamid learned counsel for respondents Nos.2 to 4 and also perused the record.
5. ' Learned counsel for the appellant vehemently urged that; (a) the learned Trial Court initially considered the statement of the complainant and his witness and passed the order for registration of the case but without any further material on record illegally reviewed its own order and thus passed the impugned order by coming to the erroneous conclusion that section 389, P.P.C. Was not applicable to the respondents Nos.2 to 4; (b) section 247, Cr.P.C. Is in Chapter XX of the Code of Criminal Procedure 1898 which deals with the trial of cases by Magistrates, therefore, this section 4, could not have been imported in Chapter XXII-A of the Cr.P.C. Which pertains to trials before the High Court and the Court of Sessions; (c) the learned Trial Court had dismissed the application under section 265-K, Cr.P.C. Which shows that the charge against the respondents Nos.2 to 4 was not groundless, therefore, the dismissal of the complaint under section 247, Cr.P.C. Appears to be mala fide and patently illegal.
6. ' Learned counsel for the respondents/accused supported the impugned judgment and vehemently urged that the complainant had chosen to remain absent to prolong the matter, therefore, the learned Trial Court was justified in passing the impugned order.
7. ' The learned Additional Advocate-General (Mr. Sarwar Khan) conceded to the remand of the case as according to him the impugned order is legally unsustainable.
8. ' Before considering the respective submissions of the learned counsel for the parties it would be advantageous to reproduce section 247, Cr.P.C. Which reads as under:-- "247. Non-appearance of complainant.-- If the summons has been issued on complainant, 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 in either cognizable or non-compoundable)."
9. A plain reading of the above section makes it clear that its object is to prevent the complainant from adopting dilatory tactics to prolong the prosecution case so that no unnecessary harassment is caused to the accused persons but this section is not intended to serve as short-cut for the Trial Court to dispose of the case by snap judgment/order and the powers are required to be exercised judicially and reasonably. Keeping in view the scheme of the Code of Criminal Procedure, 1898 it is evident that section 247, Cr.P.C. Appears in Chapter XX which deals with the trial of cases by Magistrates and the said section, thus, cannot be imported in Chapter XXII-A, Cr.P.C. The Legislature in its wisdom did not intend to do so. Hence, it is clear that if any private complaint case is pending before the Sessions Court that should be dealt with in accordance with the procedure laid down in Chapter XXII-A, Cr.P.C. And not in the manner as was erroneously followed by the learned Trial Court. After having dismissed the application under section 265- , Cr.P.C. There was hardly any justification to let off the accused under sectio 247, Cr.P.C. By dismissing the complaint which was registered after due process of law. Yet another important aspect of the matter is that one of the alleged offences for which the complaint was registered after due process of law was under section 389 which is not bailable, hence in view of the second proviso to section 247, Cr.P.C. The complaint could not have been dismissed on account of the absence of the complainant even if the matter would have been pending on the file of a Magistrate.
10. ' The upshot of the above discussion is that the provisions contained in section 247, Cr.P.C. Cannot be invoked in Sessions trial. In this view of the matter the impugned order being illegal is set aside and the appeal is allowed. The matter is remanded to the learned Trial Court for further proceedings according to law from the stage when the impugned order was passed.