' Through this petition under sections 435/439, P.P.C. Read with sections 561-A, Cr.P.C. The petitioners seek quashment of the proceedings pending before learned respondent No,3 regarding the impugned complaint i,e, Annexure 'I' while declaring the same as illegal and void and abuse of process of law and Court. It is also prayed that dismissal of the application under section 265-K, Cr.P.0 through impugned order may also be declared as illegal and unlawful.
2. The brief facts of the case are that petitioners Nos.1 and 2 were nominated as accused persons in case F.I.R. No,42 registered on 26-1-2000 at Police Station Jalalpur Jattan on the application of Jamshed Ahmed under sections 10/7/79, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with sections 338/109, P.P.C.
3. The brief allegations levelled in the F.I.R. Are that the complainant was serving as Naik in the Pakistan Army and his real niece Asifa Riaz student of F.A was living with him. In the neighbourhood of the complainant his paternal cousin was living whose son namely Kashif Nisar had bad character. Mst. Asifa Riaz, niece of the complainant, used to visit his house due to close relationship.
It is alleged in the F.I.R. That about 51/2 months ago Kashif Nisar committed Zina-bil-Jabr with Mst.
Asifa Nisar and threatened her that if she told about this incident, she would be murdered. The Zinabil-Jabr was committed with Mst. Asifa Riaz on numerous times under threats, resultantly, she became pregnant. It is also alleged in the F.I.R. That 20 days ago, Mst. Asifa Riaz was taken to some nurse by Kashif Nisar and his mother Mst. Azmat Bibi and the miscarriage was done. The niece of the complainant kept silent. Few days ago when the complainant came to know about the miscarriage, he contacted Mst. Azmat Bibi for this high-handedness, she requested to forgive her.
The complainant remained silent to save his respect and honour and got lodged this F.I.R. When he could not control himself and was thinking for committing suicide. Hence, this case was registered.
4. In this case, as a result of final investigation petitioner No,2, respondent No,1 and one Mst. Sardar Begum were challaned and report under section 173, Cr.P.C. Was submitted. Mst. Azmat Bibi was found innocent and she was placed in Column No,2 of the said report. Respondent No, 1 during investigation was found consenting party and it was held that she got her abortion with her free- will and consent.
5. The respondent No 2 filed a complaint in the Court which was dismissed by Mr. Hasan Mabroor Kiani, learned Additional Sessions Judge, Gujrat on 3-5-2000 for non-prosecution. Then respondent No,1 filed a complaint in the said Court without disclosing the earlier private complaint filed by respondent No,2 which was dismissed. This complaint was entrusted to the Court of Mr. Muhammad Nasim Akhtar Khan, learned Additional Sessions Judge but the same was also dismissed as withdrawn on 4-7-2001. Again respondent No 1 filed another complaint regarding the same occurrence in the Court which was entrusted to the Court of Mr. Muhammad Nasim. Akhtar Khan, learned Additional Sessions Judge, Gujrat in which respondent No,3 referred the matter for inquiry under section 202, Cr.P.0 before Learned Senior Civil Judge/Magistrate Section 30. During inquiry Jamshaid Ahmad respondent No 2 appeared as witness.
6., The present petitioners have been summoned vide order dated 16-11-2000 after receipt of the inquiry report. The petitioners filed an application before learned Sessions Judge but the same was dismissed by respodent No 3 on 9-7-2001. The petitioners against their summoning filed application under section 265-K, Cr.P.0 which has been dismissed through impugned order dated 26-11-2001 .
7. Learned counsel for the petitioners contends that after dismissal of first private complaint filed by respondent Isio.2, isopod private complaint filed by respondent No,1, was also withdrawn thus 3rd complaint xould not be filed and as dismissal of the complaints amounts to the acquittal of the petitioners they cannot be tried unless the superior Courts set aside the earlier orders passed in the private complaints. It is also contended that pendency of the present private complaint is hit by the principle of double jeopardy as petitioners cannot be tried again for the same offences and the pendency is against section 403, Cr.P.0 and Article 13 of the Constit ion of Islamic Republic of Pakistan, 1973. He relies upon (1993. PCr.LJ 576) Mazhar Hussain and others v The State and others and (2001 PCr.LJ 914) Allah Wadhayo v. Wali Muhammad and 3, others.
8. On the other hand, learned counsel for respondent No 1 has opposed. This petition on the grounds that the earlier private complaints were dismissed not on merits but due to technical reasons and there is no bar for initiation of the proceedings in private complaints as the matter has not been adjudicated upon merits. Hence, section 403, Cr.P.C. Is not applicable in this case. He has relied on (1991 PCr.LJ 274).
9. I have heard the learned counsel for the parties and also perused the documents attached with this petition. The contentions raised by the learned counsel for the petitioners that dismissal of the earlier complaint filed by respondent No,1 having been withdrawn is ,a bar for institution of fresh ,complaint. Being hit by section 403, Cr.P.0 as it amounts to double jeopardy. His argument is devoid of any force as admittedly the earlier complaints filed by respondent No,2 and respondent No 1 had not been dismissed on merits after affording opportunity of producing evidence to the complainant and were dismissed on technical grounds. The principle of double jeopardy will, only apply if a case or private comply has been decided on merits and the pri complaint is dismissed or accused acquitted after affording, full opportunity of producing the evidence io the complainant or the State as the case may be. There will be bar of further complaint if the complaint is dismissed on the ground. That sufficient grounds are not available after perusal of the preliminary evidence to summon the accused persons and that will also amount to decision on merits, but in the case in hand the private complaints filed by respondent No 1 and respondent No,2 were neither dismissed on merits nor the same were dismissed due to the reasons that the evidence was not sufficient to summon the respondents in the private complaint and an order of dismissal for non-prosecution or having been withdrawn does not amount to acquittal of the accused persons in a case. With utmost respect and reverence, I am not in agreement with the case-law cited by the learned counsel for the petitioners due to the reason that the law already laid down by the superior Courts has not been discussed in these cases. I am fortified by the view taken in (PLD 1968 Dacca 698)
Jabed Ali v. Joynal Mridha and 2 others, in which a Division Bench of the High Court has held that the previous complaint having been dismissed without recording evidence and without going into merits thereof, proceedings started on fresh complaint on same allegations cannot be termed as revival of previous proceedings. Such proceedings for all intents and purposes are considered to be a fresh complaint and dealt with under sections 200 and 202, Cr.P.C. The similar view has been taken in (PLD 1959 (W.P.) Lahore 1018) Walayat Bibi v. Sardaran and others by which his Lordship Mr. Justice Ortcheson, (as he then was) held that dismissal of case under one section of Penal Code, does not warrant dismissal of fresh complaint on same facts for a distinct offence. This case further laborates the proposition that even dismissal of complaint in common offence will not be a bar for the initiation of proceedings in a private complaint and will not hit the principle of double jeopardy.
The relevant portion is reproduced as under:-- "6. Subsection (2) of section 403 is to the effect that a person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him in the former trial under section 235, subsection (1). This subsection, which operates to the disadvantage of the respondents, is, unfortunately for them the one applicable to the facts of this case."
' Similarly the case-law cited by the learned counsel for the respondents also supports this proposition.
10. This petition due to the above-said reasons has no merits and is dismissed.