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Criminal Miscellaneous No. 760/Q of 1976, decided on 28th January 1977.

---Ss. 369/403 read with S. 259‑Autre fois acquit, principle of Order of discharge passed under S. 259, Cr: P. C. ‑Not a judgment nor amounting to an acquittal‑‑‑Court, held, can re‑hear case and provisions of Ss. 369 & 403 cannot operate as a bar to such an action.‑[Autre fois acquit‑Judgment].

Muhammad Munir Ahmad for Petitioners.

Malik Muhammad Yousaf for the State.

This order would dispose of petition filed by Taj Din, Mst. Rashida Bibi, Shahzad and Abdul, filed under section 561‑A, Cr. P. C. for quashing the Proceedings of case titled Mohammad Shafi v. Taj Din and others, pending in the Court of the learned Magistrate, Ferozewala.

2. Mohammad Shafi filed complaint against the petitioners under sections 452, 506/34, P. P. C., with the allegations that few months ago the intervening wall collapsed on account of rains and he wanted to construct the same wall but was prevented by the accused; that 6/7 days prior to the filing of the complaint, when he wanted to construct the wall, the accused armed with gun, danda, hatchet and stick criminally trespassed into his house and on seeing them, he shut himself in a room, that the accused hurled abuses and asked to come out of the room so that they could finish him up. The learned Magistrate recorded the statements of the complainant and Mohammad Siddiq. He found a prima facie case against the accused under section 452, P. P. C. and he issued their bail able warrants. On 19‑3‑75, the complaint was dismissed on account of non‑prosecution. An application was submitted before the learned Magistrate for the rehearing of the case and the Magistrate accepted their petition vide order dated 6‑4‑75.

3. Having felt aggrieved of that order the accused filed a revision petition, which was dismissed by the learned Additional Sessions, Judge, Sheikhupura, on 16‑3‑76. This petition has been filed under section 54I‑A, Cr. P. C. on the ground that the statements recorded by the learned Magistrate did not disclose an offence; that after having passed an order of discharge the Magistrate could not re‑call that order.

4. I do not find any substance in the arguments. According to the prosecution case the petitioners were armed with deadly weapons and they had committed house trespass after having made preparation for causing hurt. The allegations as disclosed in the complaint prima facie make out a case under section 452, P. P. C. and the learned Magistrate did not commit any illegality in summoning the accused under the aforesaid section. An order passed under section 259, Cr. P. C. is not a judgment and the discharge does not amount to an acquittal. A Magistrate who passes an order of discharge‑ can re‑hear the case or entertain afresh complaint and provisions of section 369 or 403, Cr. P. C. do not operate as a bar to such an action. Finding no merits in this petition, I dismiss it.

Petition dismissed.

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