RAJA FAYYAZ AHMAD, J.- This criminal appeal u/s. 417(2A) Cr.P.C, has been directed against order dated 25-7-1996 passed by the Judicial Magistrate- 11, Quetta whereby the Complaint filed by the appellant was dismissed and the accused acquitted of the charge.
The impugned order for convenience is reproduced below: "Called. Complainant not present. Counsel for accused Mr. Asadullah. Advocate present. No justification has been explained by the counsel for complainant for his non-appearance. The complainant has no interest in the case. He only wants to drag the accused in Court. Therefore, the complaint is dismissed, consequently the accused are acquitted."
Dated 25-7-1996.
Sd/- (Rashid Mehmood) Judicial Magistrate-II, Quetta.
2. Briefly stating the facts of the case are that on 27-11-1985 the-appellant filed a complaint u/Ss.
500/501/502 PPC against the respondents before the Assistant Commissioner/SDM, Quetta.
Cognizance of the offence was taken by the AC/SDM Quetta and in the months of February and March, 1988 the accused. Were separately indicted for the afore-mentioned offences to which they did not plead guilty and the case was transferred to Court of EAC-I/Magistrate First Class, Quetta sometime in January 1989 and ultimately the case was sent to the Court of Judicial Magistrate-II, Quetta during the process of the separation of Executive from Judiciary in the month of September, 1993. For one or the other reason the case remained pending before the Courts below (trial Courts) without any practical progress.
3. The statement of the appellant was recorded on 4-11-1992 and the case was postponed to 6-12- 1992 for cross-examination which could not be completed .And ultimately the trial Court was constrained to close the right of cross- examination of the respondents on 1-8-1993. The application moved on behalf of the respondents to recall the order dated 1-8-1993 was also rejected and the appellant however; offered himself to be cross-examined but for to consecutive days i.e. 5-4-1994 and 6-4-1994 it could not be completed and for further cross- examination the case was adjourned to 16-4-1994 on which date the counsel for-the respondents submitted an application u/s. 133 Qanoon-e-Shahadat Order, 1984 and the same was fixed for rejoinder and arguments on the application for 16-5-1994 but the learned Magistrate on such date was on leave.
The appellant attended the Court on the next date and vide order dated 31-5-1994 the personal attendance of the appellant was exempted by the Court on his application till end of July, 1994.
Against this order Revision Petition was filed by the respondents before the Sessions Judge, Quetta which was transferred to the Curt of Additional Sessions Judge-III, Quetta which Court requisitioned the record of the case which was transmitted to the Court on 5-9-1994 and was received back by the trial Court on 18-12-1994. After the dismissal of the Revision Petition, the respondents filed an application u/s. 561-A Cr.P.C, before this Court which was dismissed because by that time the complaint was dismissed by the trial Court on 12-2-1996 in default (on account of non- appearance of the complainant). The appellant thereafter filed application for review of dismissal order for the complaint which was stated to have been passed not on correct grounds and this application was not contested by the respondents counsel and the complaint was restored on 22- 5-1996 and thereafter the case was adjourned to 4-6-1996 for arguments on application u/s. 133 Qanoon-e- Shahadat Order, which remained pending with the learned trial Court when on 237-l 996 the impugned order was passed.
4. We have at length heard the learned counsel for the parties in support of their respective contentions. The learned counsel for the appellant contended that:-
(i) The offence u/s. 500 PPC for which the respondents were charged and contained in the complaint was a cognizable and not compoundable offence at the relevant time as per Criminal Law (Amendment) Ordinance, 1979 (Ordinance LX VHI) of 1979, therefore, on account of non- appearance of the complainant, by virtue of second proviso to section 247 Cr.P.C, the impugned order could not have been passed.
(ii) Notwithstanding the repeal of (Ordinance LXVIII of 1979) by Criminal Law (Amendment) Act, 1986 (Act IV of 1986) the pending proceedings would be governed under the law pres ailing at the time when action was commenced.
(Iii) The, impugned order has thus been passed by the trial Court is not only without any legal sanction but violative of the 2nd proviso to section 247 Cr.P.C, read with the offence being not compoundable and cognizable one.
The learned counsel in support of his contentions relied on the reported judgments cited by him i.e.
(1) Abdul Wahid v. Addl. District Judge-I, Quetta and 5 others (PLD 1994 Quetta 89)
(2) Muhammad Nawaz Kasuri v. Mian Abdul Hameed and another (1993 SCMR 1902),
(3) Iftikhar Ahmad Chattha v Addl. Sessions Judge, etc (NLR 1996 (Cr) 44) and Mukhtar alias Mokha v. Varyam, etc (NLR 1994 (Cr.) 437).
5. The learned counsel for the respondents controverting the contentions put forth oh behalf of the appellant submitted that the offence was neither cognizable nor compoundable on the date of passing of the impugned order, therefore, the 2nd proviso to section 247 Cr.P.C, had no 'application in the matter. According to the learned counsel the respondents have been rightly acquitted and complaint dismissed by the Court on account of the non-prosecution of the case and non- appearance by the complainant. The learned counsel added that despite lapse of sufficient long period since the institution of the complaint, the appellant did not produce his witness/evidence before the trial Court, which amounted to the abuse of the process of Court, hence in the given circumstances of the case learned Court was constrained had justified in law to have had passed the order impugned in appeal. The learned counsel to supplement his arguments cited the following case Laws:
(1) 1990 P.Cr.L.J. 1699
(2) 1986 P.Cr.L.J. 744
(3) AIR 1940 (Nagpur) 357.
We have considered the respective contentions put forth before us in the light of the relevant provisions .Of the law and have also gone through the record of the case carefully.
In view of the proposition involved in the instant matter it would be appropriate to reproduce below section 247 Cr.P.C.: "Non-appearance of complainant. 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. 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 attendant 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 is either cognisable or non- compoundable."
6. The 2nd proviso to section 247 Cr.P.C, has been inserted by Act XXI ot 1976 which is a qualifying clause to the application of the main section i.e. 247 Cr.P.C, which lays down the consequences of non-appearance of the complainant. It is an admitted position that the specified consequence in section 247 Cr.P.C, would not follow where the offence for which the accused is charged, is either cognizable or non-compoundable in terms of second proviso to section 247-Cr P C.
7. The Hon'ble Supreme Court while dealing with the applicability of section 247 Cr.P.C, in the light of the second proviso to the section reported in 1993 SCMR 1902 at page 1903 of the judgment has observed.
"............ Second proviso to S. 247 Cr.P.C, does not apply where offence of which the accused is charged is either cognizable or non-compoundable----- Offence under S. 497, PPC was undoubtedly a cognizable offence-Case was not, therefore, fit for grant of leave and the same was accordingly refused."
8. In another authority cited by the learned Counsel for the appellant reported in NLR 1996 (Cr.) 44 of the Hon'ble Single Bench of the Lahore High Court it has held: "Complaint cannot be dismissed for non-prosecution when offence u/s. 295-A was not compoundable while offence U/Ss. 501, 502 were cognisable. Order for dismissing complaint for non-prosecution in such case would be illegal."
On the subject the same view was taken in a case reported-in NLR 1994 (Criminal) 437.
9. In the case-law cited by the learned counsel for the respondents (1986 P.Cr.L.J. 744) it has been held: "-Ss. 247 & 249-A-Complaint dismissed for non-appearance of appellant-complainant-Accused acquitted-Respondents accused having appeared on eighty dates-Only four witnesses recorded on to dates of hearing-Appellant nor his counsel, nor any witness appearing when case was called on date fixed for recording of evidence-No affidavit of any of his to counsel having been filed in support of his contention- impugned order having been passed under S. 247, Cr.P.C., held, could also be justified under S. 249-A, Cr.P.C, because continuous non- production of evidence could lead to inference that there was no probability of accused being convicted of any offence-Appeal was, therefore, dismissed."
The above- quoted case-law did not deal with the applicability of S. 247 Cr.P.C, in the light of second proviso, therefore, is of no assistance in the instant matter. Yet, in another authority cited by the respondents counsel reported in 1990 P.Cr.L.J. 1699 it has been held by the Hon'ble Division Bench of the Karachi High Court while hearing acquittal appeal against the order of the dismissal of the complainant that the case did not involve any substantial question of law and related to petty matters of a non-cognisable and compoundable matter and the trial Court had justifiably passed order of acquittal of accused due to non-appearance of the complainant which was neither perverse nor arbitrary. In the present case one the offence with which the respondents were charged i.e. Under section 500 PPC subject to proviso, was made cognizable and non- compoundable vide Criminal Law (Amendment) Ordinance, 1979 (Ordinance LX VIII) of 1979 and the complaint was filed on 27-11-1985 when the Ordinance above-mentioned was in force, thus, in our view the cited case law i.e. (1990 P.Cr.L.J. 1699) has no application to the proposition in had.
10. The 3rd case-law i.e. AIR 1940 Nagpur 357 cited by the learned counsel pertains to the period long before the insertion of second proviso to section 247 Cr.P.C, vide Act XXI of 1976, so not helpful to the proposition involved in the case.
11. There is no cavil to the proposition that by virtue of second proviso to S. 247 Cr.P.C, reproduced below: "Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognisable or non-compoundable."
A complaint is not liable to dismissal nor an accused to be acquitted due to non- appearance of the complainant if the offence of which the accused is charged, is either cognisable or non- compoundable, 1993 SCMR 1902, NLR 1996 (Criminal) 44 and NLR 1994 (Cr.) 437 referred.
12. It has been mainly contended by the learned counsel for the respondents that none of the offences for which the accused was charged, was either cognizable or non-compoundable on the date of passing of the impugned order, therefore, the second proviso to section 247 Cr.P.C, had no application in the case.
13. Apparently, the contention seems to be not weightless as on the date when complaint was filed, by virtue of Criminal Law (Amendment) Ordinance, 1979 (Ordinance LX VII) the offence u/Ss. 499 and 500 PPC subject to provisos respectively were made punishable for imprisonment for a term which may extend to five years and the corresponding entries in the relevant columns of the Second Schedule of the Code of Criminal Procedure relating to section 499/500 PPC (the new entries) were accordingly substituted whereby the offence was shown to be non-compoundable and cognisable but the afore-mentioned amendments were omitted by Criminal Law (Amendment) Act. 1986 (Act IV of 1986). The provisos as above-mentioned to sections 499 and 500 PPC and the corresponding entries in the relevant columns of Second Schedule of Cr.P.C, were omitted vide Act IV of 1986.
14. The provisos inserted in sections 499 and 500 PPC through Ordinance No. LXVIII are reproduced below for ready reference: S. 499-Defamation '....... '
"Provided that exception in this section, other than the fourth exception, shall not apply in cases in which the imputation is published in a "book" "news sheet" or "news-paper" as defined in the West Pakistan Press and Publication Ordinance, 1963 (Ordinance XXX of 1963)."
S. 500. Punishment for defamation- "Provided that, where the imputation is published in the manner referred to in the proviso to section 499, this section shall have effect as if for the words "to years" therein the words "five years" were substituted." and on the date when the impugned order was passed the provisos to sections 499 and 500 were omitted by Act IV of 1986 and thus the offence u/s. 499 or 500 PPC on such date was neither cognisable nor non-compoundable.
15. The offence u/s. 500 PPC on the date of its alleged commission by the respondents inclusive of the date on which the complaint was filed was not only cognisable but was also non- compoundable. The rights or liabilities of the parties ter the proceedings are governed by the Statute as it prevailed on the date when action was commenced notwithstanding the repeal or omission of any particular provision of such Statute subsequently, thus, the omission of the provisos to sections'499 and 500 PPC by Act IV of 1986 would not affect the validity and the applicability of the provisos to sections 499 and 500 PPC inserted by Criminal Law (Amendment)
Ordinance, 1979 (Ordinance No. LXVIII) of 1979 to the pending cases. The second proviso to section 24 Cr.P.C, was thus fully attracted in the case and the impugned order thus was not competently passed by the trial Court as the offence u/s. 500 PPC was cognisable, as well as non- compoundable.
16. Adverting to the next contention of the counsel for the respondent that the appellant for years - together could not complete his side of the case and badly failed to produce evidence which proceedings against the respondents were sheer abuse of the process of the Court hence the dismissal of the complaint was perfectly justified. We have examined this aspect of the case in the light of the record and noticed that since the registration of the complaint, both the parties on account of their contributory acts and omissions appear to be responsible for such an extreme delay in the disposal of the case. The learned trial Court as such erred in holding that the appellant simply wanted to drag the respondents into the proceedings of the case.
17. In view of the above discussion we are of the considered opinion that the impugned order dated 25-7-1996 passed by the Judicial Magistrate-II, Quetta is without any lawful authority and of no legal consequence; which accordingly, is set aside and the case is remanded to the trial Court with the directions to conclude the trial and dispose of the case within a period for four months from the receipt of this judgment, in accordance with law.