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Criminal Revision No. 44/L of 1985, decided on 18th February, 1986.

--‑‑S. 439‑‑Penal Code (XLV of 1860), S. 452‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10‑‑Rejection of complaint‑‑F.I.R. lodged with Police‑‑Direct complaint also filed in Court subsequently‑‑Case sent to Sessions Judge after inquiry under S.202, Cr.P.C.‑‑Sessions Judge rejecting complaint without going into merits‑ Sessions Judge, held, acted unlawfully and did not exercise jurisdiction vested in him by Law‑‑Complaint had to take preference even if challan case was before Sessions Judge‑‑Case remanded for fresh trial.

Nur Elahi v. The State P L D 1966 S C 708 ref.

Malik A.R. Arahad for Petitioner.

Hafiz Ghulam Bari for the State.

Date of hearing: 18th February, 1986.

The petitioner is aggrieved of the order, dated 22‑9‑1984 by which the learned Additional Sessions Judge, Rajanpur dismissed a complaint made under section 452. P.P.C. and section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 just for the reason that the First Information Report lodged by the complainant, had, at that time‑not been cancelled.

2. Briefly stated that facts of the case are that the petitioner lodged a F.I.R. on 20‑3‑1984 with the Police Station, Jampur alleging offences of trespass and forcible Zina. The investigating agency proceeded with the matter, but feeling that it was not acting objectively and in accordance with law, the petitioner filed a direct complaint on 30‑5‑1984. It was sent to a learned Magistrate under section 202, Cr.P.C. for a report. The Magistrate recorded the statements of four witnesses and also placed on record the medical report as well as 'Talaq Nama' and sent the case to the learned Sessions Judge. He, however, without going into the merit of the case has rejected the complaint as stated above.

3. It is contended by the learned counsel that the non‑cancellation of the first information report is not a condition precedent for the entertainment or consideration of complaint. The learned counsel for the State has nothing to meet this plea. It is to be noted that a complaint has to be given preference, even if the challan case was also before the trial Court. Reference be made to the case reported as Nur i Elahi v. The State P L D 1966 S C 708. In this view of the matter learned Additional Sessions Judge acted unlawfully and his order amounts to refusal on his part to exercise the jurisdiction vested in him by law. The impugned order is, therefore, set aside and the case is sent back for fresh trial to the Additional Sessions Judge, Rajanpur. He is directed to dispose it of within a period of a month from the receipt of the order.

S.A Revision accepted.

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