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Cases Nos. 4(161), 4(162) and 4(164) of 1984, decided on 18th July, 1985.

(a) National Industrial Relations Commission (Procedure and Functions) Regulations, 1973‑‑

‑‑‑Regln. 28 & 29‑‑Commencement of trial‑‑Trial, held, does not begin as soon as F.I.R. was lodged‑‑Where there was no decision on matter of law or fact and accused were acquitted not after determining that they were innocent, but on application made for withdrawal of complaint, no trial could be held to have taken place in circumstances.

Stroud's Judicial Dictionary; Ballentine's Law Dictionary and Law Dictionary by P.G. Osborn ref.

(b) National Industrial Relations Commission (Procedure and Functions) Regulations, 1973‑‑

‑‑‑Regln. 29‑‑Criminal Procedure Code (V of 1898), S. 219‑A, 203 & 403(1)‑‑Application for dismissal of complaint‑‑Requirements‑‑Such application could be considered only after hearing prosecutor and accused‑‑Charge against accused had been framed but no prosecution evidence had been led‑‑Withdrawal of previous complaint from National Industrial Relations Commission would not amount to acquittal of accused‑‑Second complaint was competent, even though such complaint might be connected with previous complaint which had already been dismissed‑‑Application for dismissal of complaint, held, was not competent when charge had been framed against accused.

P L D 1983 S C 344 and P L D 1980 S C 139 ref.

‑‑‑S. 249‑A‑‑Application for acquittal of accused‑‑Such application relating to facts of earlier complaint, which had been dismissed as withdrawn, but not relating to present complaint, held, was not maintainable and was liable to dismissal in circumstances.

Ataur Rehman Sheikh for the Complainants.

Raja Abdul Rashid for Respondents.

Muhammad Kashtoonish Khan for Respondents.

Three complaints under section 16/22‑A (8)(g) read with section 53 of the Industrial Relations Ordinance, 1969 were submitted by Sh. Riaz Ahmad, Deputy Controller, Regional Office, M.C.B. Rawalpindi; against Masud Akhtar Kiani and 4 others; Syed Kazim Azhar Rizvi, Staff Officer, Allied Bank of Pakistan, Islamabad against Mirza Aleem Javed Baig and 4 others; and Muhammad Zaki Khan, Assistant Vice President, Habib Bank Limited Blue Area, Islamabad against Zafar Iqbal and 5 others. The preliminary statements of the complainants were recorded on 8th of July, 1984 and the accused were summoned to appear before me on 18‑7‑1984. The charges against the accused were read over on 8‑8‑1984 and the case was fixed for prosecution evidence on 30‑9‑1984. On 8th of November, 1984 the learned counsel for the respondents filed an application for summary dismissal of the complaint and a copy of the same was handed over to the learned counsel for the complainant. The case was fixed for arguments but due to my illness the case could not be heard. The case was heard on 10‑7‑1984.

2. The learned counsel for the accused submitted that the accused were summoned by the learned Senior Member, N.I.R.C. on 5‑7‑1984 in Case No. 4(153)/84 and the complaints filed before the learned Senior Member which related to the circumstances contained in the present complaint were dismissed as withdrawn without any permission to file fresh complaint. He, therefore, pleaded that the present complaint was not maintainable on the similar circumstances which were the subject matter of previous complaint and as such he prayed that these complaints may be dismissed on this ground.

3. Raja A. Rashid and Mr. Muhammad Kashtoonish Khan, learned counsel for the respondents pointed out that under Regulation 28 of the N.I.R.C. (Procedure and Functions) Regulations, 1973 the Commission may either discharge the accused or proceed with the case if the complainant does not appear upon the date appointed for the appearance. He pointed out that under Regulation 29 if a complainant at any time before the final order is passed in any case under this chapter, satisfied the Commission that there are sufficient grounds for permitting him to withdraw his complaint, the Commission may permit him to withdraw the same and shall thereupon acquit the accused. He pointed out that in case of discharge under Regulation 28 a fresh application may be submitted but in case of acquittal under Regulation 29 no fresh application can be submitted on the same ground. The learned counsel referred to section 403, Cr.P.C. which says that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall while such conviction or acquittal remains in force not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under section 237.

4. The learned counsel for the respondents submitted that the moment an F.I.R. is registered the trial of the accused starts. This was not agreed to by the learned counsel for the complainant, who stated that in that case accused is not at all present and the trial could not be attributed to the complainant. I have gone through the definition of trial. The Stroud's Judicial Dictionary defines trial as under:‑‑

"A trial is the conclusion by a competent Tribunal of questions in issue in legal proceedings, whether civil or criminal. Therefore, the hearing of the reference of an action and of matters in difference is not a trial within the attendance of Witness Act, 1854."

In Ballentines Law Dictionary trial has been defined as:‑‑

"In law, a judicial investigation and determination of the issues between the parties to an action. An examination before the competent Tribunal according to law of the land of the facts or law put in issue in a case, for the purpose of determining such issue."

In a concise law Dictionary by P.G. Osborn trial has been defined as:‑‑

"The examination and decision of a matter of law or fact by a Court of law."

5. I, therefore, feel that the contention of the learned counsel for the respondents that a trial begins as soon as an F.I.R. is lodged is not correct. As in the instant case, there was no decision on a matter of law or fact and the accused were acquitted not after determining that they were innocent, but on an application made for withdrawal of; the complaint.

6. The learned counsel for the complainant submitted that there was no provision in the N:I. R.C. (Procedure & Functions) Regulations, or 'in the Cr. P. C. in which an application for dismissal of a complaint could be moved. He, therefore, stated that the application being out of the ambit of the law does not warrant any notice by the Commission. He referred to Regulation 29 and stated that under this Regulation the complainant could move an application for withdrawal of his complaint before a final order is passed and the Commission may permit him to withdraw but that does not amount to acquittal of the accused, as in this case no charge was framed against the accused and the complaint was not resisted. He stated that there was no provision under the Regulations for submitting an application for summary dismissal of a complaint. He stated that under section 249‑A, Cr.P.C. the Court could acquit any accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence.

7. The learned counsel for the respondents stated that the application for summary dismissal of the complaint may be treated as an application under section 249‑A. I feel this application could be considered only after hearing the prosecutor and the accused. In this complaint the charge against the accused has been framed but no prosecution evidence has been led so far. The learned counsel also pointed out that the complainant was different in the complaint filed before the learned Senior Member and that more accused had been added in the complaint filed before this Bench. He stated that as no charge was framed by the learned Senior Member, there was no order of acquittal of the accused. Referring to section 403, Cr.P.C. he stated that ingredients of section 403 (1) are that there should be a trial by a Court and that the accused should not have been convicted or acquitted and that such conviction or acquittal should remain in force. He stated that no charge was framed against the accused and nobody was tried. There was no conviction or acquittal and as such conviction or acquittal was not in force‑

8. The learned counsel for the complainant submitted that the concept of res judicata or estoppels is a concept alien to the criminal complaint. He stated that this was the only ground urged in the application and as such the application deserves outright rejection as it has been filed with sole ulterior motives to delay the proceedings of the case and is mala fide in nature. He quoted P L D 1983 S C 344 wherein it was held that there being no adjudication on merits, mere withdrawal of suit not to operate as res judicata and P L D 1980 S C 139 wherein it was held‑‑First Writ Petition not decided on merits‑‑dismissal of such petition for non‑prosecution, held, did not for such reasons alone, bar a fresh writ petition‑‑Constitution of Pakistan, 1973, Article 199.

9. He further stated that in the main complaint filed before the learned Senior Member the respondent had threatened to proceed on strike but in the second complaint the accused actually went on strike despite the prohibitory order. He stated that paras. 7, 8 and 9 of the fresh complaint relate to incidents after the earlier complaint had been dismissed as withdrawn and consigned to record. He stated that the respondents could have moved an application for dismissal of the complaint before the charge was framed. He stated that the present application is mala fide on the part of the respondents. He referred. to section 203, Cr. P.C. and stated that a Magistrate who had tried and discharged any accused persons on particular charges can again enquire into the same charges on a second complaint. He also stated that it was open to the complainant to file another complaint on the same facts, before another Magistrate but it is the compelling duty of the complainant to inform the second Magistrate of the dismissal of the first complaint. In the Act there was nothing to prevent a Magistrate from entertaining a second complaint made against the same person even though the second complaint may be connected with the previous complaint, which had already been dismissed under section 203. A Full Bench of Madras High Court has held that the dismissal of a complaint under section 203 does not operate as a bar to the rehearing of the complaint by the same Magistrate even when such order of dismissal has not been set aside by a competent authority.

10. I find that in Habib Bank Limited the complaint before the learned Senior Member was filed by Mr. Muhammad Nawaz Khawaja, Vice‑President and General Manager, Habib Bank Limited Islamabad against (1) The Banking Staff Federation through Masud Akhtar Kiani, its Secretary, (2) Habib Bank Limited Staff Union through sun Manzoor Hussain its General Secretary, (3) Mr. Zafar Iqbal, President, Habib Bank Ltd. Staff Union, and (4) Sufi Manzoor Ahmad, General‑Secretary, Habib Bank Limited Staff Union. The complaint before this Bench has been filed by Mr. Muhammad Zaki Khan Assistant Vice‑President Habib Bank Limited, Circle Office, Blue Area Islamabad against (1) Zafar Iqbal, Cashier, H.B.L. Rawalpindi Cantt.; (2) Sufi Manzoor Hussain, Cashier, Dheri Hasanabad Branch; (3) Tariqur Rehman, Assistant Safe Deposit Vault Branch Rawalpindi Cantt.; (4) Zawar Hussain Qureshi, Cashier, F‑7 Branch, Islamabad; (5) Rana Irshad Ahmad, Cashier 'A' Block Secretariat Branch; and (6) Muhammad Yaqoob Chughtai, F‑6 Super Market Branch, Islamabad. It will be seen that only 2 accused Nos. 1 and 2 were mentioned in the previous complaint and in the new complaint 4 new accused have been added.

11. Similarly in Muslim Commercial Bank the complaint was filed by Mr. Riaz A. Sheikh, Deputy Controller of Branches M..B. Limited.

Rawalpindi against (1) Banking Staff Federation through Masud Akhtar Kinani its Secretary, (2) M.C.B Staff Union, and (3) Mushahid Hussain General‑Secretary, M.C.B. Staff Union. The complaint before this Bench is also filed by Mr. Riaz Ahmad Sheikh, Deputy Controller against respondents Nos. 1 and 2 in addition the following 3 accused have been added No. 1 Muhammad Naseer, Cashier, Raja Bazar Branch, Rawalpindi, (2) Muhammad Farooq, Assistant Main Civic Centre Branch, Islamabad, and (3) Muhammad Khurshid, Assistant Satellite Town Branch, Rawalpindi.

12. In Allied Bank of Pakistan Limited the complaint before the learned senior Member was filed by Mr. M. Ratiq Kashmiri, Manager New Street Branch, Rawalpindi against (1) Banking Staff Federation, Islamabad, (2) Allied Bank Limited Staff Union, (3) Aleem Javed Baig, President A.B.L. Staff Union, (4) Malik Wazir Hussain, General‑Secretary A.B.L. Staff union, (5) Khalid Mahmood Bhatti, President, A.B.L. Staff Union Islamabad Zone, and (6) Jan Muhammad Qureshi, General‑Secretary A.B.L. Staff Union Islamabad Zone. The complaint before this Bench has been filed by Mr. S. Kazim Azhar Rizvi, Staff Officer Allied Bank of Pakistan Islamabad Blue Area Islamabad and in addition to the respondents Nos. 3, 4, 5 and 6 Muhammad Ajmal Khan, Cashier, Liaqat Bagh Branch has also been included.

13. As to the facts, the complaint before the learned Senior Member was that at the instigation of the accused persons the employees of the complainant‑Bank have so far observed the programme given in the posters and that a token strike was to be observed on 27‑6‑1984 and a complete strike was threatened for 28‑6‑1984. In the complaint before this Bench the events of 27‑6‑1984, 28‑6‑1984 and 4‑7‑1984 have been mentioned. This shows that the respondents are not the same and that the complaint also relates to additional facts not mentioned in the complaint before the learned Senior Member. The order, dated 25‑7‑1984 issued by the learned Senior Member states that the learned counsel for the complainant has moved an application seeking permission to withdraw the above‑cited cases and 4 cases mentioned in the application are dismissed as withdrawn according to the prayer. This order shows that the complaint has been dismissed as withdrawn according to the prayer and that the accused were not acquitted as stated by the learned counsel for the respondents.

14. The learned counsel for the respondents has relied on section 403, Cr.P.C which shows that a person who has once been tried by a Court of competent jurisdiction of an offence and convicted or acquitted of such offence shall not be liable to be tried again for the same offence. It will be observed that the accused were never tried by the learned Senior Member as no charges were framed against them nor the a trial was concluded and as such mere dismissal of the complaint on an application for withdrawal of the case to my mind cannot be treated as acquittal.

15. In view of the definitions as given in a number of dictionaries a "Trial" is the conclusion by a competent Tribunal of questions in issue in legal proceedings whether civil or criminal, and there was no such thing in this case and as such the provisions of section 403, Cr.P.C. will not apply. 1 also agree with the learned counsel for the complainant that there is no provision in the N.I.R.C. Regulations, or in the Cr.P.C. in which an application for dismissal of a complaint could be moved when a charge has been framed against the respondents.

16. Section 249‑A, Cr.P.C. deals with the powers of a Magistrate to acquit an accused at any stage and lays down that nothing in this chapter shall be deemed to prevent a Magistrate from acquitting the accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded he considers that the charge is groundless and that there is no probability of the accused being convicted of any offence. The learned counsel for the respondents stated that this application may be treated as an application under section 249‑A. This application is also not maintainable even under section 249‑A. The application relates to facts not relating to the instant complaint but to the earlier complaint on some of the facts and relating to some of the accused, which had been dismissed as withdrawn by the learned Senior Member.

17. In view of the above discussions I find there is no force in th applications submitted by the learned counsel which are dismissed and I shall proceed to record the prosecution evidence.

A.A.

Application dismissed.

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