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Criminal Appeal No. 141 of 1981, decided on 6th December, 1982.

(On appeal from the judgment and order of the Lahore High Court dated 9‑6‑1981 in Criminal Revision 287/81).

--S. 302/149 read with Criminal Procedure Code (V of 1898), Ss. 417(2) & 439(5)‑Complaint filed before Additional Sessions Judge‑Azccused summoned but before framing charge, complainant making application for allowing withdrawal of complaint ‑ Court consequently allowing withdrawal and acquitting accused‑Evidence in case found to be lacking to substantiate charge against accused‑ Ordering proceedings to start afresh considered to be futile in circumstances of case‑Held, no interference was called for in matter.

Rana Abdul Ma/id, Advocate Supreme Court of Pakistan and Karam Elahi Bhatti, Advocate‑on‑Record for Petitioner.

Hakim M. Sardar Khan, Advocate‑on‑Record for Respondents.

Rashid Aziz Khan, Additional Advocate‑General Punjab, Muhammad Bilal, Advocate Supreme Court of Pakistan and Ch. Akhtar Ali, Advocate‑on- Record for the State.

Date of hearing : 6th December, 1982.

This appeal is directed against the judgment of Lahore High Court dated 9‑6‑1981 passed in Criminal Revision No. 287 of 1981.

2. Leave in this case was granted to the petitioner vide order of this) Court dated 17‑10‑1981 on the ground that there being no provision enabling the Court of Session to allow withdrawal of the complaint once cognizance has been taken, the order of the said Court dated 12‑2‑1981 was without jurisdiction and that the petitioner was not complainant' in the case and as such, was not debarred by the provisions of section 417(2) or 439(5), Cr. P. C. from instituting the revision.

3. Facts are that a complaint was filed by Mian Khan under section 302/149, P. P. C. against respondents Nos. 1 to 18 which came up for hearing before the Additional Sessions Judge, Gujrat, and the accused were summoned, but before the charges were framed, the learned Additional Sessions Judge accepted an application made by Mian Khan, complainant, seeking withdrawal of the complaint, and he, therefore, acquitted the aforesaid respondents of the charges.

4. Petitioner, who claims to be eye‑witness of the occurrence filed a revision petition before the Lahore High Court which was dismissed on 9‑6‑1981 as not being maintainable. The reason given in the order by the learned Judge of the High Court is that revision is allowed only when there was no provision for filing an appeal and that provision of 417(2). Cr. P. C. for filing an appeal in cases of a complaint, the word complainant' should, be read in fit cases, to be any other person who would have a right to file petition for leave to appeal.

5. Learned counsel contended before us that the learned Single Judge, while interpreting section 417, Cr. P.‑ C. has observed in the impugned order that subsection (2) has been added to provide a procedure for filing appeals in cases of complaints and the word complainant' should be read, in fit cases, to be any other person who would have a right to file a petition for leave to appeal. This interpretation is not disputed but the acquittal, order of the respondents was not passed by the learned Additional Sessions Judge in accordance with law ; that the respondents were summoned to face trial under section 302/148/149, P. P. C. The charges had to be framed under section 266‑D, Cr. P. C. but no charges were framed and the accused persons were acquitted by the learned Additional Sessions Judge on 12‑2‑1981. So the order suffers from jurisdictional competence and the order for withdrawal of complaint filed by Mian Khan was also without lawful jurisdiction. It was also contended that after the accused were summoned it was incumbent on the trial Court to frame the charges and then pass an order of acquittal if it was so warranted. Learned counsel further contended that the learned High Court was competent to recall the order in its revisional jurisdiction which has not been done in spite of the stated principle of law that the High Court has vast powers to re‑call any illegal order of any subordinate Court suo motu in order to meet the ends of justice.

6. However, on going through the facts of the case we consider it futile to order the proceedings to start afresh as evidence in this case is lacking to substantiate any charge against the petitioner: Therefore, no interference is called for in the matter. The appeal is, consequently, dismissed.

Appeal dismissed.

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