Some undisputed facts of this case are that respondent No.2 filed a complaint under sections 365/365-A/324 read with section 34, P.P.C. Against the petitioner and respondent No.3 in the Court of learned Judge Special Court-II (Anti-Terrorism), Rawalpindi Division/Islamabad Capital Terrority.
Preliminary inquiry was made and said accused persons were summoned. On 4-9-2001 while the said complainant/respondent No.2 was absent but the said accused persons were present, the learned Judge proceeded to dismiss the complaint no to acquit the accused persona. Criminal Appeal No.433/T of 2001 was filed by respondent No.2 in this Court which was dismissed by a Division Bench of this Court on 24-4-2002. It was observed that respondent No.2 had a remedy by filing a fresh complaint or seeking restoration or complaint. On 21-5-2002 respondent No.2 filed a restoration application. The learned Judge took up this application on 10-6-2002 and without notice to tote accused persons proceeded to restore the complaint. Upon receipt of the notice, the petitioner put appearance and filed an application on 13-7-2002 seeking review of the said order.
This application was dismissed on 16-9-2002.
2. Malik M. Rafiq Khan, learned counsel for the petitioner contends that the impugned order is without jurisdiction, inasmuch as the said restoration application was filed by a learned counsel who had no authority to file the same; the application did not disclose any reason for restoration of the complaint and so is, the case with the order dated 10-6-2002 passed by the learned Special Judge. According to the learned counsel the learned Special Judge wrongly read the said judgment dated 24-4-2002 as direction to restore the complaint, notwithstanding the said legal lacuna. Vehemently urges that a valuable right had accrued to his client because of the acquittal resulting from the said dismissal of the complaint and learned Special Judge proceeded to restore the complaint without even issuing a notice to his client. Learned counsel states that appropriate and legal course was to have filed a fresh complaint which could have been processed in accordance with law.
3. Mr. Sabah Mohy-ud-Din Khan, learned counsel for the complainant/respondent No.2 argues with reference to the case of Zahoor and another v, Said-ul-Ibrar and another (2003 SCM R 59), that very order dated 4-9-2001 dismissing the complaint because of absence of the complainant was void inasmuch as the case falls squarely within mischief of second proviso to section 247, Cr.P.C.
The precise contention is that the petitioner and other accused were charged with offences which are non---compoundable and are cognizable. He insists that the complainant had executed a power of attorney in his favour while appointing him as counsel and the said attorney not only authorized him to conduct the proceedings in the complaint but also to take all incidental proceedings including appeals and applications.
4. It must be noted to the credit of Malik M. Rafiq that he has frankly stated that he would not be having any cavil with the said contention of the learned counsel for the respondent but he insists that' to cure an illegality, so many other illegalities ought not to have been committed.
5. I have examined the available record, with the assistance of the learned counsel for the parties.
The facts, as stated by me above, are undisputed, except the contentions note above. The complaint was inquired into, prima facie case was held to be made out and accused persons were summoned. Now the said second proviso to section 247, Cr.P.C. Lays down in unambiguous terms that the complaint shall not be dismissed in absence of the complainant and the accused acquitted where they have been charged with a cognizable and non-compundable offences.
There is no dispute that the offences were non-compundable and cognizable. I note here that the Hon'ble Supreme Court in the case of Zahoor and another have taken a very strong exception to dismissal of a complaint in such cases under section 247, Cr.P.C. And had declared such an order to be patently illegal, void ab initio and without jurisdiction.
6. Now I have no doubt in my mina that the learned Special Judge has proceeded in the matter in a rather illegal manner. I find that not a single reason was stated in the application dated 21-5- 2002 for the restoration of the complaint or for that matter explaining the absence of the complainant on 4-9-2001. Similarly learned Special Judge proceeded to restore the complaint by accepting the said application in the first instance without even notice to the petitioner and in second without stating a single reason as to why he is restoring the complaint. However, the petitioner did take his chance before the learned Special Judge by filing a review application on 13- 7-2002 and explaining the illegality thus committed. This time learned Special Judge took care to issue a notice to the complainant and to hear both the parties. To my mind, he has written well reasoned order on 16-9-2002 while dismissing the said review application and in the process to explain as to why lie has restored the complaint. The reason obviously is that initially the order could not have been passed for dismissing the complaint on 4-9-2001.
7. Learned counsel for the petitioner also refers to a portion of the order dated 16-9-2002 of the learned Special Judge to urge that a misstatement has been made therein while observing that the power of attorney filed by Mr. Sabah Mohy-ud-Din, Advocate, in the course of said criminal appeal in this Court was not signed by his client whereas the learned counsel for the petitioner states and learned counsel for the respondent admits that the said power of attorney did bear the signatures of his client. To my mind, this can reasonably be attributed to a slip of pen.
8. Now all that remains to be seen is as to how the initial illegal rather void act of the learned trial Court could have been undone. I feel no hesitation in observing that the learned Special Judge, in view of the said dictum of Hon'ble Supreme Court was in any case bound to correct the said manifest error the moment it was brought to his notice and consequently this Court would not be interfering with the impugned order of the learned Special Judge as ultimate result is that a wrong has been undone. With these observations this criminal revision is dismissed.