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Criminal Appeal No.10 of 1983, decided on 13th February, 1985.

---S.247‑‑Acquittal for absence of complainant‑‑ Ilaqa Magistrate on basis of inquiry report issued notices to accused taking cognizance of matter‑ Accused charged by complainant for cognizable offence‑‑S. 247, second proviso, Cr. P. C., held, was fully attracted in circumstances and accused could not be acquitted by Magistrate under S. 247, Cr. P. C.‑‑Order of acquittal being in disregard of law therefore, could not be maintained.

1978 P Cr. L J 410 and P L D 1975 Azad J 4 K 120 rel.

P L D 1975 Azad J & K 12 distinguished.

Fazal‑e‑Haq Abbasi for Appellant.

Khalid‑ur‑Rehman for Respondents Nos. 1 to 3.

K. G. Sabir for the State.

Date of hearing: 13th February, 1985.

Karim Dad son of Mir Zaman had filed a complaint under section 447/427/34, P.P.C. against Sher‑ur‑Rehman and two others in the Court of Ilaqa Magistrate (EAC‑111, Haripur). In the complaint it was alleged that the accused‑respondents had committed offehce which fell within the purview of the provisions of law already quoted. That complaint was marked by the learned Ilaqa Magistrate to Tehsildar, Haripur for inquiry under section 202, Cr. P. C. The inquiry was accordingly conducted at which, besides the complainant two other witnesses were examined, whereafter report was submitted by Tehsildar, Haripur to Ilaqa Magistrate, who, on the basis of the report having formed a view that there was a prima facie case against the accused‑respondents, summoned the parties to appear before him on 12‑2‑1983. On this date, however, the Presiding Officer, being busy in other executive duties, was not present in Court and the case was, therefore, posted to 21‑2‑1983 for hearing by the Reader of the Court after marking the presence of the complainant in the ordersheet when the accused‑respondents were not found present. On 21‑2‑1983 the complainant was present in court but the accused‑respondents were not. They were, therefore, re‑summoned for 28‑3‑1983. On this date the complainant absented himself and out of the accused‑respondents, Azizur Rehman alone was present The learned Magistrate, for the default committed by the complainant, straight‑way acquitted the accused‑respondents under section 247, Cr. P. C. giving reason in the order that the absence of the complainant meant that he was not serious to prosecute the case. The complainant was accordingly dismissed.

2. Against the aforesaid order complaint Karim Dad has come up to this Court in appeal after Leave was granted to him by this Court.

3. Mr. Fazal‑e‑Haq Abbasi, Advocate appeared on behalf of the appellant, Mr. K. G. Sabir, Advocate (Law Officer) represented the State and Mr. Khalid Rehman Qureshi, Advocate appeared on behalf of the accused‑respondents. They were heard and the record perused.

4. The argument of the learned counsel for the appellant is that since the offence under section 447, P.P.C. with which the accused respondents were charged by the complainant, was a cognizable offence, the learned Ilaqa Magistrate was not right in acquitting the accused respondents under section 247, Cr. P. C. and that his order being incomplete disregard of the second proviso to section 247 ibid was illegal and merited to be quashed. In this regard he relied on 1978 Criminal Law Journal 410.

5. The learned counsel representing the State frankly conceded that the impugned order made by the learned Magistrate being in violation of the second proviso contained in section 247, Cr. P. C. could not be defended. He also submits that since on the basis of inquiry report the learned Magistrate had taken cognizance of the matter and had issued notices to the accused‑respondents, then he should have disposed of the matter on merits ignoring the absence of the complainant on one date.

6. The learned counsel appearing on behalf of the accused respondents, however, contends that the word 'charged' used in the second proviso to section 247, Cr. P. C. means that this provision of taw would come into play only when in a case the accused has been formally charged and that it would have no application to a case where no formal charge has been framed by the trial Court. The learned counsel also takes refuge behind the authority reported as P L D 1975 A J & K 120.

7. I have given my anxious consideration to the arguments addressed at the Bar. I find myself in agreement with the learned counsel for the appellant and the learned Law Officer representing the State. The learned Ilaqa‑Magistrate had taken cognizance of the complaint on the basis of the report formulated by the Tehsildar, Haripur to whom matter was entrusted for inquiry under section 202, Cr. P. C. The accused‑respondents were summoned by the learned trial Magistrate thereafter. They were charged by the complainant to have committed offence under section 447/427/34, P.P.C. out of which offence under sections 447, P.P.C. is cognizable. That being so, second proviso to section 247, Cr. P. C. was fully attracted to the case, and in the light of the language used therein the accused‑respondents could not have been acquitted by the learned Magistrate under section 247 ibid. The impugned order being in disregard of the law cannot be maintained. The interpretation placed by the learned counsel for the accused respondents upon the word 'charged' as used in the aforesaid second proviso is fallacious. P L D 1975 A J & K 1,2.0 relied upon by the learned counsel for the accused‑respondents in support of his arguments has no application to the facts of this case. In that case the interpretation of second proviso to section 247, Cr. P. C. was not involved and question referred to the Full Bench for answer was quite different. While taking this view of the matter, I have in my support the decision given in Ch. Allah Ditta's case 1978 P Cr. L J 410 with which I respectfully agree.

8. Consequently, this appeal is accepted, the impugned order is set aside and the case is remanded to the learned Ilaqa Magistrate for trial in accordance with law.

S.A. Appeal accepted.

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