ABDUL HAMEED DOGAR, J.--The petitioners have sought leave to appeal against the judgment dated 1-2-2002 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No,219-Q of 2001 whereby the same was dismissed.
2. The brief facts of the case are that the complainant Jamshed Ahmed lodged F.I.R. Wherein 'he stated that he was serving Pakistan Army. His niece Mst. Asifa Riaz was also living with him. In his neighbourhood his paternal cousin was living whose son, namely, Kashif Nisar developed illicit relations with her niece and he committed Zina-bil-Jabr with her for several times as a result, she became pregnant. He further alleged that about 20 days before lodging of the F.I.R. Mst. Asifa Riaz was taken by Khashif Nisar alongwith his mother to a nurse, namely, Sardar Begum for abortion.
The moment complainant came to know about miscarriage, he reported the matter to the police.
On completion of investigation, Kashif Nisar, Mst.Asila Riaz and Mst. Sardar Begum were sent up to face trial. Mst.Azmat Bibi petitioner was placed in column No,2 of the challan as she was found innocent, whereupon respondent No,2 Jamshad Ahmad filed a private complaint which was dismissed for non-prosecution on 3-5-2000 by learned Additional Sessions Judge, Gujrat.
Thereafter, respondent No,1 filed another private complaint which was entrusted to respondent No,3 Mr. Muhammad Naseem Akhtar, Additional. Sessions Judge, Gujrat, which was also dismissed as withdrawn on 4-7-2001. Then again respondent No,1 filed another complaint regarding the same occurrence which was also entrusted to respondent No,3, who after recording the statement of victim-respondent No,1, Mst.Asifa Riaz, referred the matter for inquiry under section 202, Criminal Procedure Code (Act V of 1898) (hereinafter referred to as 'the Code') to the Senior Civil Judge, Gujrat, having powers of Section 30 Magistrate. During the inquiry, the statements of the complainant Asifa Riaz as (P.W. I), Jamshed Ahmad as (P.W.2), Mst.Bashir Begum as (P.W.3), and Mst. Sardar Begum alias Sughra Bibi as (P.W.4) were recorded. On the basis of the above statements, the cognizance of the matter was taken, the complaint was brought on regular file and the summons were issued against the petitioners by the learned trial Court vide order dated 16-11- 2000. They challenged the above order under section 265-K of the Code and prayed for acquittal, but the same was dismissed by the learned trial Court on 26-11-2001. Thereafter, they assailed the same in Criminal Miscellaneous No,219-Q of 2001 under section 561-A of the Code before the learned Lahore High Court, Lahore, seeking the quashment which too, was dismissed on 1-2-2002.
3. We have heard Sardar Muhammad Lateef Khan Khosa, learned Advocate Supreme Court and have gone through the proceedings of the case in minute particulars.
4. The learned counsel for the petitioners mainly contended that after the dismissal of first complaint filed by Jamshed Ahmad respondent No,2 for non-prosecution, the second complaint was filed by respondent No,1 Asifa Riaz victim which was also withdrawn on some technical ground.
Thus, the cognizance cannot be taken on the third complaint filed by respondent No, I on the same facts and grounds and the petitioners would be entitled to acquittal. He referred to section 248 of the Code and emphasized that in view of the provisions laid down in this provision of law once a complaint is withdrawn with the permission of the Court, the accused shall be acquitted of the charges and the re-trial is biased. He further argued that the pendency of the proceedings on such complaint would be hit by the principle of double jeopardy as the petitioners cannot be tried again for the same offences. In support of the above contentions, he referred to section 403 of the Code and Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter called as 'The Constitution'). He also relied upon Mazhar Hussain and others v. The State and others (1993 PCr.LJ 576) and Allah Wadhavo v. Wali Muhammad and 3 others (2001 PCr.LJ 914).
5. On the other hand Mr. Khadim Hussaain Qaiser, learned Advocate Supreme Court for the respondents, vehemently controverted the arguments and stated that the complaints referred above were not dismissed on merits but were dismissed either for non-prosecution or withdrawn on some technical grounds as such there was no bar for filing the fresh complaint on the same facts and grounds. According to him, it was after holding inquiry under section 202 of the Code and recording the statements of the witnesses the cognizance was taken and the complaint was brought on regular file, thus the order does not suffer from any illegality. In rebuttal, he stated that the provisions of sections 248 and 403 of the Code are not applicable in this case. In support of his contentions, he relied upon the cases of Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (AIR 1962 SC 876 (V 49 C 121) and Jabed Ali v. Joynal Mridha and 2 others (PLD 1968 Dacca 698).
6. The moot point to be determined in the instant case is whether the withdrawal of the complaint is a withdrawal simpliciter or withdrawal under section 248 of the Code. Irrespective of this, it is also to be examined as to whether the provisions of section 403 of the Code and Article 13 of the Constitution are attracted in this particular case or not.
7. In order to appreciate and apprise the above aspects of the matter, the reference would be made to certain provisions of Chapters XVI, XVII, XVIII and XX of the Code. Chapter XVI of the Code sets forth the entire procedure from the stage of the filing of the complaint in the Court till the issuance of process or otherwise. It in fact relates to the preliminary proceedings under sections 200 and 202 of the Code and according to these provisions the person complained against has no right of participation, until a cognizance is taken into the matter and is summoned. The purpose behind this exercise is to find out truth or falsehood of the accusations made in the complaint to be examined on the basis of evidence to be adduced by the complainant. In the instant case, the learned Magistrate has examined the victim-complainant Mst. Asifa Riaz under section 200 of the Code then finding prima facie case examined her witnesses, namely, Jamshad Ahmad, Mst. Bashir Begum, Mst. Sardar Begum alias Sughra Bibi and thereafter, took the cognizance of the matter and issued process against the petitioners. It is thereafter the provisions of Chapter XVII would come into effect and under this Chapter, the cognizance of offence is taken and the accused are summoned to face the trial. Chapter XX deals with the trial of the accused so summoned.
8. The first complaint was dismissed for non-prosecution only on account of absence of the complainant who too had sent an application for adjournment that he being the army personnel was busy in official duty. The second complaint filed by respondent No,1 was also withdrawn on some technical ground. Thus, both these complaints were dismissed at the premature stage without touching the merits of the case as such the third complaint on the same facts was maintainable. The contention that the provisions of section 248 of the Code would be attracted in the instant case is without merits mainly for the reasons that this provision of law would be applicable only in those cases where the trial has commenced.
9. Similarly, the provisions of section 403 of the Code and Article 13 of the Constitution are also not attracted in this matter mainly for the reasons that the petitioners were neither tried earlier nor were convicted or acquitted in this matter, but it was for the first time that they are being proceeded with on merits. It was also during the commencement of the proceedings they have preferred applications under sections 265-K and 561-A of the Code for their acquittal respectively before the trial Court as well as learned Lahore High Court.
10. The case-law referred by the learned counsel for the petitioners is on entirely different facts and circumstances and is thus not applicable. Whereas the case-law referred by the learned counsel for the respondents supports their case. In the case of Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (AIR 1962 SC 876), it has been held that the second complaint on the same allegation is competent after the dismissal of the first complaint even though the earlier complaint was dismissed under section 203, Cr.P.C. In the case of Gulab Khan v, Fazal Hussain and another (1968 PCr.LJ 730), it has been observed that the dismissal of complaint for non-prosecution is not a bar to the entertainment of fresh complaint on same allegations for decisions on merits. It has also been held that the proceedings prior to issuance of process to accused do not amount to taking cognizance of the case. The same view has been taken by a learned Division Bench of the then High Court of Eest Pakistan, Dacca in the case of Jabed Ali v. Joynal Mridha and 2 others (PLD 1968 Dacca 698).
11. From the above resume, we are of the considered opinion that the complaint in question was maintainable and competently filed.
12. So far as the exercise of discretion under sections 265-K and 561-A of the Code are concerned, we do not find any illegality in the orders of the learned Additional Sessions Judge, Gujrat and the learned Lahore High Court, Lahore. No case for abuse of the process of the Court is also made out.
13. Accordingly, the petition being devoid of any force is dismissed and leave to appeal is refused.