' SARDAR MUHAMMAD RAZA KHAN, J.---This-is a petition for leave to appeal against the judgment dated 19-9-2001 of a learned Judge in Chambers of the Peshawar High Court passed in Criminal Revision No,22 of 2001.
2. On charges of corruption and acquisition of huge property beyond the ostensible sources of income, a complaint under section 200, Cr.P.C. Was brought by petitioners Zahoor and Arbab Aslam against Said-ul-Ibrar and Rooh-ul-Amin, two brothers, who remained appointed as Executive Engineer and Sub-Divisional Officer, Irrigation Department and who have retired by now.
It may be mentioned at this stage that the offences aforesaid are cognizable as well as non- compundable.
3. On 2-1-2001, the learned Special Judge, Anti-Corruption, N.-W.F.P., Peshawar dismissed the complaint for non-prosecution under section 247, Cr.P.C. On 5-1-2001, the complainants filed an application for restoration of the complaint before the same Court, which was dismissed on 27-1- 2001. They filed revision petition before the High Court, which was also dismissed on 19-9-2001 by a learned Judge in Chambers of the Peshawar High Court on the only ground that the order passed under section 247, Cr.P.C. Was appealable under section 417(2) of the' Cr.P.C. Subject to granting of leave to appeal and hence no revision could be filed under section 439(5), Cr.P.C. When a right of appeal was provided. The complainants seek leave to appeal from this Court against such order.
4. Second proviso to section 247, Cr.P.C. Indicates that nothing in this section shall apply where the offence of which the accused is charged is either cognizable for non-compoundable. Meaning thereby, that where the offences, like one in the instant case, are either cognizable or non- compoundable nothing contained in section 247 shall apply. Put in other words, it would mean that under these conditions section 247, Cr.P.C. Is almost to be considered non-existent and cannot be resorted to at all. If so resorted to, the order would be patently illegal and without jurisdiction.
5. Learned counsel for the petitioners vehemently asserted that no doubt a normal order passed under section 247, Cr.P.C. Is appealable but an order absolutely perverse as well as without jurisdiction could also be challenged in revision under section 439, Cr.P.C. He relied upon a judgment of Peshawar High Court in Banarus Khan v. The State (PLD 1995 Peshawar 103) wherein it was, inter alia, held that the High Court in exercise of its revisional jurisdiction can, as a duty, recitfy every error of trial Court which happens to cause grave injustice. The perusal of the above ruling would indicate that the verdict was based on a judgment of this Court rendered in Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi (1983 SCMR 775). This Court had observed that jurisdiction of a High Court under section 439, Cr.P.C. Is always wide. That in its real purpose a power under section 439, Cr.P.C. Is not a mere power but a duty which cannot be effectively discharged unless the High Court sees to it that subordinate criminal Courts conduct their proceedings strictly in accordance with law and that it would be a startling proposition that the High Court should be disabled from discharging this very necessary duty simply because a party who could and should have appealed, makes mistake of filing a revision or a party who is adversely affected by result of proceedings has no right to invoke revisional jurisdiction.
6. If we scrutinize the order dated 2-1-2001 of the trial Court it was void ab initio, as observed earlier, was patently illegal and the invoking of power by the trial Court for dismissal of complaint due to the absence of the complainant in a cognizable and non-compoundable case was utterly without jurisdiction these circumstances, the learned High Court was competent enough to set it aside under its revisional jurisdiction. The learned High Court has also failed to exercise the jurisdiction vested in it. It may further be observed that the learned High Court could also recall and vary the order in exercise of its inherent powers under section 561-A, Cr.P.C. As held by this Court in Muhammad Khalil-ur-Rehman v. Mst. Shabana Rahman (PLD 1995 SC 633).
7. In the given circumstances, what manner should be adopted to rectify the error, is another aspect of the case. The first proposition is to remand the' case to the High Court for deciding the same on merits. The second is to restore the complaint and direct the trial Court to proceed in accordance with law. A third mode is suggested by the learned counsel for the petitioners that the matter should be left open for the complainant to bring about a new one. Though not with reference to section 247, Cr.P.C. Yet with reference to section 203, Cr.P.C. The learned counsel stressed that if the dismissal of a complaint under section 203, Cr.P.C. Is no bar to the filing of fresh petition, a complainant should be at liberty to file a fresh complaint if the one is dismissed unlawfully and without jurisdiction by placing a void reliance on section 247, Cr.P.C. In connection with his submission with reference to section 203, Cr.P.C., the learned counsel relied upon a judgment from the High Court of Balochistan in case Muhammad Akram v. Haji Mir Aziz Ahmed (2000 PCr.LJ 489). As the matter requires close consideration, we would attend first to this last part of the argument.
8. Some search of case-law on the point has revealed that the major contribution in this behalf is of the Indian Supreme Court in the case of Pramatha Nath Talukdar v. Saroj Ranjan Sarkdar (AIR 1962 SC 876). The material observation of the Supreme Court of India for our purpose, appearing in para.48 at page 899 of the judgment is as follows:-- "An order of dismissal under section 203, Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts, but it will be entertained only in exceptional circumstances, e.g. Where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into."
9. Before arriving at a definite conclusion, we first refer to the contents of sections 200 to 203, Cr.P.C.
That exclusively deal with the matter of private complaints. Section 203, Cr.P.C. Clearly lays down that a Court which is seized of a matter under section 200, Cr.P.C. May dismiss the complaint, if, after considering the statement on oath of the complainant and the result of investigation or inquiry under section 202, Cr.P.C., there is in its judgment no sufficient ground for proceeding further. The Court, in these circumstances, is bound to give reasons as well for such *missal. The section categorically provides the application of mind by the Court to the statement on oath of the complainant as well as to the result of the investigation or inquiry ordered to be conducted under section 202, Cr.P.C. Meaning thereby, that the dismissal is not in routine but with the positive application of mind to the facts and circumstances of the case. This is further highlighted by the words "in his judgment" appearing at the end of section 203, Cr.P.C. The Court is required to evaluate the evidence and to make a judgment thereon in order to hold whether or not sufficient grounds exist for proceeding further. We hold a tentative view that when once a matter is dismissed after appreciation of statement on oath and the result of inquiries etc., the complainant should not be allowed to vex the respondent time and again particularly when such judgment of the trial Court contains the narration of sufficient grounds for not proceeding further.
10. On the other hand, we are also alive to the fact that at times extremely perverse orders are passed by the trial Courts which are apparently without jurisdiction. In such rare and extraordinary circumstances, strictly adhered to by the Courts below, the complainant should be allowed to file a fresh complaint after dismissal of one under section 203, Cr.P.C. Such circumstances are aptly laid down by the Indian Supreme Court as reproduced above. We feel that in the given circumstances, the filing of fresh complaint should not be a bar for the complainant. This is particularly so because in the sections concerned there is no specific bar as observed by the Indian Supreme Court also. It is also pertinent to note that up to the stage of section 203, Cr.P.C., the accused is not yet summoned. Taking analogy from such section as well as from observations with reference to section 203, Cr.P.C., we hold that in the extraordinary circumstances referred to above a fresh complaint should not be barred if the one already filed is dismissed under section 247, Cr.P.C.
11. Now we come to the remedial part of the matter. As mentioned earlier and after discussion aforesaid and also holding that the order of the trial Court in the present case was perverse, void and without jurisdiction. We are left with three remedies already alluded to. If the case is remanded to the High Court for deciding the revision petition on merits, the Court shall have to appreciate the merits of the case which have already been discussed unavoidably in our judgment. Thus it would be futile to remand the case to the High Court, in addition to being a wastage of time. We would also avoid calling upon the complainant to file a fresh complaint because therein he would be most likely to improve upon and to change the character of his charge. The better way to resolve the problem is to set aside all the orders of the two Courts below, to restore the complaint and to direct the trial Court to proceed the with in accordance with law, without being influenced by any observation of this Court on the merits of the case. By converting this petition into appeal and accepting the same, we order accordingly. Both the parties to be summoned by the trial Court itself. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.