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Criminal Acquittal Appeal No.62 of 1983; ‑decided on 9th October, 1984.

‑‑‑S.417(2)‑‑Penal Code (XLV of 1860), S. 323/504/506/34‑‑Appeal against acquittal‑‑Dismissal of complaint by trial Court in cognizable offence on ground of default of appearance‑‑Action of trial Court, held, not justified‑‑Case remanded to trial Court to proceed with from stage when order in appeal was passed.

Chaudhry Allah Ditta v. Noor Muhammad etc. 1978 P Cr. L J 410 ref.

‑‑‑Ss. 417(2) & 203‑‑Penal Code (XLV of 1860), S. 323/504/506/34‑ Appeal against acquittal‑‑Dismissal of complaint in cognizable offence on ground of default of appearance‑‑Case remanded to trial Court‑ Contention that party settled matter out of Court, held, could be agitated before trial Court in circumstances.‑‑[Complaint].

Attaullah Khan for Appellant

Ahmedullah Farooqi for Respondents.

Date of hearing: 9th October, 1984

‑‑ This is an appeal against the order, dated 16‑4‑1983 passed by the learned S.D.M., Nazimabad, Karachi in, case No.246 of 1982 Muhammad Rafique v. Fazloo and others under section 323/504/506/34, P.P.C. on the ground of non‑appearance of the complainant. The above appeal was admitted for the purpose of considering the question, whether the trial Court was justified in dismissing the complaint of a cognizable offence on the ground of default. Mr. Attaullah Khan in support of the appeal has referred to the case of Chaudhry Allah Ditta v. Noor Muhammad etc. reported in 1978 PCr.LJ 410, in which a learned Single Judge of the Lahore High Court held that in a case involving non compoundable offence acquittal order cannot be recorded on the ground of non‑prosecution of the complaint. However, it has been contended by Mr. Ahmadullah Farooqi, learned counsel for the private respondents that in the present case no acquittal order has been recorded and, therefore, the above ruling is not applicable but he concedes that the dismissal of the complaint indirectly amounts to acquittal of the accused.

2. It is an admitted position that the complainant was present on all the dates of hearings except on 16‑4‑1983 on which date according) to the averments in) the memo of appeal he was present alongwith his Advocate but was informed by the Peshkar that the learned Presiding Officer was on leave. Be that as it may, it will suffice to say that A since the complainant had been present throughout in the case, the learned trial Court was not justified in dismissing the complaint in default at about 11.00 a.m. in respect of the cognizable offence. Mr. Imam Bukhsh Shaikh learned counsel for the State submits that it is a fit case which should be remanded to the trial Court.

3. It was then contended by Mr. Ahmadullah Farooqi, that factually the parties have settled the matter out of Court. In this regard, it will suffice to observe that the respondent can agitate this point before B the trial Court. The appeal is allowed. The case is remanded back to the trial Court with the direction to proceed with the same from the stage when the order in appeal was passed.

M. Y. H. Case remanded.

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