' Khan Muhammad petitioner is the complainant of Crime Case No,154 registered on 16-7-1998 at Police Station Qadir Pur, District Jhang about the murder of two deceased namely Lal Din and Falak Sher. In the aforesaid F.I.R. Ten accused namely Ahmed son of Salehun, Shamma son of Amir, Ahmed son of Amir, Shamma son of Ghinna, Mamman alias Muhammad, Zafar, Amir, another Ahmed son of Salehun, Dilla and Kameer were the nominated accused. During the investigation the local police is said to have connived with the accused party and the four accused namely Amir son of Salehun, Ahmed son of Salehun, Dilla son of Ahmed and Kameer son of Jahana were declared as innocent. Feeling aggrieved Khan Muhammad petitioner-complainant filed a complaint in the Court of the learned Sessions Judge, Jhang (respondent No,2) which came up for hearing before him on 6-10-1998 who sent the same to Mr. Ishtiaq Ahmed, Senior Civil Judge/Magistrate Section 30, Cr.P.C. To conduct the inquiry under section 202 of the Code of Criminal Procedure and to submit his report on 5-12-1998. The said learned Magistrate Section 30 vide order dated 21-10-1998 recommended the rejection/dismissal of the complaint on the ground that nobody appeared before him on the date fixed as according to the said learned Magistrate the petitioner was served through his learned Advocate. The learned Sessions Judge, Jhang/respondent No,2, on the report of the aforesaid learned Magistrate Section 30, filed the complaint of the petitioner vide order dated 5-12-1998 with the observation that there was no sufficient ground to proceed with the complaint as there was no appearance of the petitioner despite the service of his learned counsel.
2. Feeling aggrieved by the aforesaid orders dated 21-10-1998 and 5-12-1998 Khan Muhammad petitioner has filed Criminal Revision to get the same set aside on the ground that he was not served personally to appear before the learned Inquiry Officer/respondent No,3 and that the mere service of the learned Advocate was not sufficient. He maintained that he had filed the complaint being aggrieved of the investigation of the police and, thus, was quite serious to prosecute his case and that the impugned order passed by the learned Sessions Judge was against the norms of criminal justice.
3. At this stage it is proper to express that according to order dated 21-10-1998 passed in vernacular by the learned Magistrate Section 30, Cr.P.0 nobody appeared before him in spite of the service of Khan Muhammad complainant through his learned counsel who expressed that the inquiry could not be conducted and thus the complaint was liable to be dismissed. He sent the matter back to the learned Sessions Judge. On 5-12-1998 learned Sessions Judge expressed that the complainant was served through his learned Advocate who has failed to produce his evidence in support of the allegations contained in the complaint and that there was no sufficient ground to further proceed with the complaint. Consequently the complaint was dismissed under section 203 of the Code of Criminal Procedure.
4. I have heard the learned counsel for the petitioner as well as learned Assistant Advocate- General and gone through the record before me. Learned counsel for the petitioner laid the emphasis that there was no material before the learned trial Court for the reason that Khan Muhammad petitioner was not served and thus was not granted an opportunity to produce his evidence who was entitled to be granted the opportunity enabling him to appear before the Court along with the prosecution evidence. He added that the learned Magistrate Section 30, Cr.P.0 simply performed his duty in a perfunctory manner. In this regard he referred to section 203 of the Code of Criminal Procedure according to which it is only after considering the material collected during the inquiry that the dissection of the same could be made and the complaint could be dismissed. He also referred to proviso H to section 247 of the Code of Criminal Procedure and argued that the petitioner filed his complaint for the conviction of the ten accused persons under section 302/148/149/109, Pakistan Penal Code which were cognizable and, thus, the complaint could not be dismissed in the manner adopted by the learned trial Court as in consequence the complaint shall be considered to have been dismissed for non-appearance of the complainant.
On the contrary learned A.A.-G. Argued that the present situation has been created by Khan Muhammad petitioner-complainant who did not appear in spite of his service through his learned Advocate and did not produce his evidence. He continued that due to the non-production of the evidence the complaint was rightly dismissed by the learned Sessions Judge on the report submitted by the learned Magistrate Section 30, Cr.P.C. In my view the proceedings have been conducted by both the learned Sessions Judge as well as the learned Magistrate Section 30, Cr.P.0 in a perfunctory manner. The grievance of the petitioner is that he treated the four persons, declared as innocent, as the accused persons of the double murder and, thus, he moved the learned Sessions Judge for their trial along with the six co-accused. According to the ruling printed as Noor Elahi v. The State and others (PLD 1966 Supreme Court 708) the complaint case has to be given the preference on the challan case and the trial in the complaint case has to be conducted earlier. It means that the complaint case has to be heard with all the seriousness and not in the manner adopted by the learned Magistrate Section 30, Cr.P.0 as well as the learned Sessions Judge.
5. At this stage I deem it proper to reproduce as under sections 202 and 203 of the Code of Criminal Procedure so that the matter stands disposed of in a proper manner keeping in view the true legal spirit:-- "Section 202. Postponement for issue of process.--(1) Any Court, on receipt of a complaint of an offence of which it is authorised to take cognizance, or which has been sent to it under section 190, subsection (3), or transferred to it under section 191 or section 192, may, if it thinks fit, for reason to be recorded, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by any Justice of Peace, or by a Police Officer, or by such other person as it thinks, fit for the purpose of ascertaining the truth or false-hood of the complaint: ' Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200.
(2) A Court of Session may, instead of directing any investigation under the provisions of subsection (1), direct the investigation to be made by any Magistrate or Justice of the Peace subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint.
(3) If any inquiry or investigation under this section is made by a person not being a Magistrate, or Justice of the Peace or a Police Officer such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police station, except that he shall not have power to arrest without warrant.
(4) Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witness on oath.
' Section 203. Dismissal of complaints.-The Court before whom a complaint is made or to whom it has been transferred, or sent may dismiss the complaint, if, after considering the statement on oath (if any) of the complaint and the result of the investigation or inquiry (if any) under section 202 there is in his judgment no sufficient ground for proceeding. In such cases he shall record his reasons for so doing."
6. A perusal of section 202 of the Code of Criminal Procedure has made out that it also contains the filing of a criminal complaint with respect to a murder case before the learned Magistrate 1st Class who has to send up the same to the Court of Session as contemplated under section 190(3) of the Code of Criminal Procedure which reads that "a Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall without recording any evidence send the case to the Court of Session for trial". A perusal of the proviso to subsection (1) of section 202 of the Code of Criminal Procedure reproduced above has made out that before directing any inquiry and sending the same to a subordinate Court, the competent Court which has to hold the trial and give its opinion about the truth or otherwise of the allegations contained in the complaint even at the initial stage regarding the issuance of summons to the accused cannot send the file for holding the inquiry unless the complainant has been examined on oath under the provisions of section 200 of the Code of Criminal Procedure. Learned Sessions Judge passed the order dated 6- 10-1998 whereby he sent the complaint to Mr. Ishtiaq Ahmed, Magistrate Section 30, Cr. P.C, Jhang for holding an inquiry and a perusal of the said order dated 6-10-1998 has made out that the learned Sessions Judge did not examine the complainant on oath under the provisions of section
200. Without following the aforesaid legal provision of mandatory nature the matter could not be sent for inquiry to the learned Magistrate Section 30. Even in the aforesaid order dated 6-10-1998 no date was fixed for the appearance of Khan Muhammad complainant before the learned Magistrate Section 30 Cr. P.C. Jhang. In this view of the matter it was incumbent upon the learned Magistrate Section 30, Cr.P.C., Jhang to have summoned Khan Muhammad complainant in person as in a criminal case the presence of the complainant is that of utmost legal necessity and the presence of his Advocate is not sufficient to deny the right of audience to him as adopted in the instant matter. In a criminal case the complainant, the prosecution witnesses, the accused persons, the defence witnesses and the Court witnesses are to be got served through the police. It is the admitted position that Khan Muhammad complainant was not got served by the learned Magistrate Section 30, Cr.P.C. Whose absence in the matter cannot be said to be intentional and the non-production of prosecution witnesses at the preliminary stage during the inquiry by him cannot be termed as his recalcitrant attitude to defeat the-provisions of law so as to make him suffer as in the instant matter. Thus where the learned Sessions Judge did not examine the complainant and proceeded in the matter forthwith by sending the file for inquiry to the learned Magistrate Section 30, Cr.P.C, no seriousness was shown by the learned Magistrate Section 30, Cr.P.C. In the matter of the disposal of the inquiry as projected above. It is simply surprising that the name of the learned Advocate through whom Khan Muhammad petitioner-complainant is said to have been got served is not incorporated in the order dated 21-10-1998 passed by the learned Magistrate Section 30, Cr.P.C. This laxity on the part of the said learned Presiding Officer has made out that he proceeded in routine and conducted himself in a perfunctory manner.
7. At this stage it is proper to reproduce as under section 247 of the Code of Criminal Procedure:-- "Section 247. 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, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reasons he thinks proper to adjourn the hearing of the case to some other day: ' Provided that, where the complainant is 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 is either cognizable or noncompounable."
8. I would express and hold that where the offence of which the accused is charged is either congnizable or non-compoundable, the provisions of the aforesaid section 247 of the Code of Criminal Procedure shall not apply. It means that the private complaint filed in terms of section 190 of the Code of Criminal Procedure for the prosecution of the accused for the offence(s) cognizable or non-compoundable cannot be dismissed in default due to the non-appearance of the complainant. My view is that by the insertion of proviso 2 in section 247 of the Code of Criminal Procedure through Ordinance No, XII of 1972 the criminal complaint pertaining to the offence of which accused is charged is either cognizable or compoundable cannot be dismissed due to non- appearance of the complainant even if the prospective accused has not been summoned.
According to the ruling printed as Muhammad Shairf v. The State 1981 PCr.L.I 704 a private complaint relating to a charge which is cognizable or non-compoundable is to be treated with a registered case of the same category. A perusal of the impugned order dated 5-12-1998 passed by the learned Sessions Judge has made out that the complaint was dismissed by him in the absence of Khan Muhammad complainant who, even otherwise, was not summoned by him for appearance. Practically the complaint regarding cognizable offences has been dismissed due to non-appearance of Khan Muhammad complainant. Further, there is no provision in the Code of Criminal Procedure for dismissal of the criminal complaint for want of prosecution. Thus, this aspect of the matter has also to play the positive legal role in favour of Khan Muhammad writ petitioner.
9. I, therefore, declare that the impugned orders passed by the learned Magistrate Section 30, Cr.P.C. And the learned Sessions Judge are devoid of judicial propriety and suffer from legal infirmity which are liable to be set aside.
10. For what has been said above, I accept this petition, set aside the impugned order dated 5-12- 1998 passed by the learned Sessions Judge, Jhang and remand the case to his Court who himself shall proceed in the matter in accordance with law.
11. The complainant and his learned Advocate shall appear before the learned Sessions Judge, Jhang on 12-1-1999. In case of non-appearance of Khan Muhammad complainant he shall be got served afresh by the learned Sessions Judge, Jhang.