' This revision petition is directed against the order, dated 16-9-1997, passed by the Senior Special Judge, Anti-Corruption, Punjab, Lahore, whereby he dismissed the private complaint filed by the petitioner.
2. Brief facts of the case giving rise to the instant revision petition are as under:--
3. Mst. Shamim Akhtar, wife of Muhammad Iqbal, resident of Islamnagar, Faisalabad, (petitioner) filed a private complaint against Abdul Rauf Dogar, D.S.P., C.I.A. Cantt. Qila Gujjar Singh, Lahore, Abdul Rasheed, Inspector, C.I.A., Talib Hussain, S.-L, C.I.A. (respondents), under section 161, Cr.P.C.
Read with section 5 of Prevention of Coition Act, 1947. Since the respondents were Government servants, hence, sanction for their prosecution for the said offence by the competent Authority (Commissioner, Lahore Division, Lahore) was a sine qua non under section 197 of Cr.P.C., therefore, learned Senior Special Judge, Anti-Corruption, on entertaining the complaint, sent a letter to the Commissioner, Lahore Division, Lahore on 20-11-1994, for the grant of sanction for the prosecution of the respondents. The sanction was not granted by the authority within the stipulated period of 60 days and according to the petitioner sanction stood granted under the relevant provisions of law.
However, the complaint was dismissed for non-prosecution on 19-2-1995 by the learned Senior Special Judge, Anti-Corruption. The petitioner did not challenge the said order and kept quiet for one year. She again filed a private complaint which too was dismissed for non-prosecution on 27- 2-1996. This order also remained unchallenged. She filed third private complaint which also met with the same fate'i,e, dismissal in default on 4-10-1996. The petitioner filed an application before the learned Senior Special Judge, Anti-Corruption, for recalling of the aforesaid order which was disallowed vide trial Court's order, dated 16-9-1997.
4. Feeling aggrieved the petitioner has come up in revision.
5. Learned counsel for the petitioner has vehemently contended that the impugned orders are unsustainable and liable to be set aside.
6. That three complaints filed by the complainant could not be dismissed for non-prosecution or for want of sanction beyond stipulated period. It was, therefore, prayed that the order, dated 16-9- 1997, passed by the learned Senior Special Judge, Anti-Corruption may be set aside.
7. Having given my careful consideration to the arguments propounded by the learned counsel for the parties, I am of the view that dismissal of complaint under section 203, Cr.P.C. Is a dismissal in limited. The accused has no notice or information about the accusation contained in the complaint. The dismissal of the complaint was not made on merits because genuineness of the allegations or their falsehood had never been the subject of appraisal and adjudication by the Court, hence, dismissal of the complaint under section 203, Cr.P.C. Does not mean the discharge or acquittal of the accused and the complainant is fully competent to file the second complaint on the same facts. I am fortified in my view by the two celebrated judgments reported in 1968 PCr.LJ 730 and 1969 PCr.LJ 849. A similar view was expressed by the High Court of Tripura (India jurisdiction), reported in AIR 1965 Tripura 29. After dismissal of her first complaint for non- prosecution, the petitioner remained inactive and did not challenge the said order for a period of one year. However, in view of the aforesaid precedent cases she was fully competent to file a second complaint. But unfortunately that too was dismissed for non-prosecution. From the contents of the petition it seems that either she was least interested in the complaint or she was negligent in its prosecution. As is well-settled when the complainant is absent on the date on which the case is posted for examination of the complainant, an order dismissing the complaint is justified. AIR 1928 Cal. 559
8. The next question which needs adjudication is whether the trial Court is competent to review its order when the second complaint was dismissed for non-prosecution. The answer is that in case where a complaint is dismissed while the trial Court takes evidence, offered by the complainant into consideration and comes to the conclusion that there is no ground to proceed or that the evidence is not worthy of credence and the complaint is dismissed on merits, a second complaint in such a case would be gross abuse of the process of the Court. AIR 1962 SC 876, AIR 1958 SC 97, AIR 1960 SC 1113. However, the distinction was drawn between cases in which order of discharge is passed after appreciation of the evidence with a view to determine the innocence or guilt of the accused and those in which the proceedings are terminated merely for some technical reasons, such as absence of the complainant and the dismissal of the complaints in default or for non- prosecution. In such cases, the order does not amount to a judgment within the meaning of section 369, Cr.P.C. And it is open to the trial Court (Magistrate/Judge) to review it. The Court has not discharged the accused on merits, hence, the order does not amount to a judgment and consequently the trial Court is not debarred from reviewing it, setting it aside and reviewing the old complaint. AIR 1965 Tripura 29. I am, therefore, constrained to hold that had the complainant moved an application for review of order of dismissal in default before the trial Court when the first or second complaint was dismissed for non-prosecution, the trial Court was fully competent to review its order and restore the complaint on its file. But unfortunately, the complainant did no follow this legal procedure and filed a third complaint on the same cause of action which was incompetent. Hence, the learned Senior Special Judge, Anti-Corruption, cannot be directed to review/recall his order, whereby complaint was dismissed in default. In spite of the fact that he was fully competent to do so and the impugned order is absolutely erroneous and misconceived because no sanction of any kind was required for the prosecution of a public servant for the offence committed by him after 30-6-1992 in view of the judgment reported in PLD 1992 SC 72. A similar view was expressed in 1995 PCr.LJ 1968 and PLD 1994 SC 281 where it was held by a Division Bench of the Supreme Court as under:-- "The sanction required under section 197, Cr.P.C. Is even otherwise not required in view of law decision in the case of Zafar Awan PLD 1992 SC 72". Since the allegations contained in the complaint were relatable to a date after 30-6-1992 hence, the dismissal of the first complaint filed by the complainant for want of sanction for prosecution was wholly untenable, but unfortunately the petitioner did not assail that order vide the instant revision petition, as observed earlier the learned lower Court is fully competent to review or revise its order particularly passed in a case like the instant one where the complaint was dismissed in default and not on merits. Learned Senior Special Judge, Anti-Corruption, Punjab, is fully competent to revise or review the order of his predecessor because those orders were the orders of his own Court and by so doing he shall be reviewing his own orders in the light of the aforesaid precedent cases. His jurisdiction to do so is not barred particularly when the order of dismissal of complaint for want of sanction by the authority was absolutely illegal and wholly unwarranted in the light of Supreme Court dictum laid down in PLD 1992 SC 72. That order is a Coram non juice and becomes nullity in the eye of law hence, it shall be deemed that the first complaint filed by the complainant was still pending before the learned Senior Special Judge, Anti-Corruption, Punjab, who is directed to restore it on its file, record the statement of the complainant at once as required under section 200 of Cr.P.C. And to proceed with the case in accordance with law.