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Criminal Revision No. 660 of 1978, decided on 20th December, 1981.

---S. 247, second proviso--Penal Code (XLV of 1860), Ss.448 & 403- Complaint dismissed for non-prosecution--Matter before Court being with regard to framing of charge and one of the offence for which accused was charged was cognizable and not compoundable--Private complaint, held' could not be dismissed by Trial Court in default.

---Ss. 439, 203, 200 & 247--Penal Code (XLV of 1860), Ss.448 & 403- Private complaint dismissed for non-appearance of complainant on date fixed for framing of charges--Complainant instead of filing revision against said order electing to file second complaint and after dismissal of second complaint in default electing to file third complaint--During pendency of third complaint, complainant filing revision against order of dismissal of first complaint--Complainant having himself elected to start fresh proceedings, held, could not be permitted to resuscitate first order of dismissal--Alternative prayer made for transfer of evidence recorded in first complaint to record of third complaint not having been made before Trial Court same could not, therefore, be ipso facto dealt with in revisional jurisdiction.

Nawab-ud-Din Mahmood for Petitioner.

Raja Abdur Razzaq for Respondent No.1.

Nemo for the State.

Date of hearing: 13th December, 1981.

This is a revision petition filed by Meraj Din, petitioner, for the setting aside of the order of the trial Magistrate, dated 4-5-1971 discharging Bashir Ahmad Bukhtiar, respondent No.1, and three others from charges under section 448/403, P.P.C. or, in the alternative, for the evidence produced by the petitioner in the first complaint case to be ordered to be read as evidence in the third complaint case filed by the petitioner against Bashir Ahmad Bukhtiar, respondent No. 1, presently pending in the Court of the Assistant Commissioner, Lahore.

2. The brief facts of the case are that on 3-4-1968 the petitioner filed a private complaint against Bashir Ahmad Bukhtiar, respondent No.1, and three others under section 448/403/427, P.P.C. After the preliminary evidence was recorded, the summons were issued to respondent No.1 and his three companions to stand the trial. After prosecution evidence was recorded, the case was fixed for 4-5-1971 for framing of the charge. On 4-5-1971 the petitioner was absent and respondent No.1 and his three companions were discharged by the trial Magistrate. On 15-5-1971 the petitioner filed a second complaint on the same facts against respondent No.1 and his three companions under section 448/403/427, P.P.C. After preliminary evidence was recorded, the Magistrate issued summons to respondent No.1 to face the trial under section 448/427, P.P.C. The case was fixed for evidence for 7-8-1971. On this date, the petitioner was absent and the case was dismissed for non-prosecution. On 9-8-1971 the petitioner filed a third private complaint on the same facts against respondent No.1 and his three companions under section 448/403/427, P.P.C. After recording preliminary evidence, the Magistrate only summoned respondent No.1 to face trial under section 448/427, P.P.C. Whilst the said case was in progress, on 27-10-1972 the petitioner filed a revision petition before the Sessions at Lahore for the setting aside of the order, dated 4-5-1971 passed by the trial Magistrate. The said revision petition came up for arguments on 20-3-1973 on which date the learned counsel for the petitioner contended that the order of the learned trial Magistrate, dated 4-5-1971 dismissing the first complaint was illegal, because it could not be dismissed after the accused had been summoned and the matter was fixed for the framing of the charge. It was also contended that the second complaint could also not be dismissed by the learned Magistrate in default, after summoning the accused. Lastly, it was urged that since the third complaint related to the same facts on which the earlier complaints were filed, therefore, the evidence recorded in the first complaint should be allowed to be transferred on record of the third complaint and the proceedings should start from the stage where these were dropped of at the time of the dismissal of the first complaint. The learned Additional Sessions Judge, Lahore held that as the second complaint was instituted by the petitioner after the dismissal of the first and the third complaint was instituted after the dismissal of the second, the petitioner by his conduct had elected to start afresh with the case and as such his request that the previously recorded evidence should be transferred and read as evidence in the third complaint could not be allowed in the interest of justice. The learned Additional Sessions Judge also held that since a request for the transfer of the statements of the witnesses made in the first private complaint had not been made to the learned trial Magistrate trying the third private complaint, the petitioner could move the trial Magistrate in the said connection. With this observation, the revision petition was dismissed. The petitioner has now filed the present second revision against the order of the learned Additional Sessions Judge, for the relief as stated in para. 1 above.

3. Learned counsel for the petitioner submits that under the second proviso to section 247, Cr. P. C . the trial Magistrate could not have dismissed the first private complaint on 4-5-1971 as one of the offences for which respondent No.1 was challaned, namely, section 448, P.P.C. was cognizable.

The learned counsel, therefore, states that the order, dated 4-5-1971 should be set aside. In the alternative, it is also pressed that in case this orders is not set aside, an order may be passed that the evidence recorded for the petitioner in the first complaint case should be transferred to and read as evidence for the petitioner in the pending third complaint case.

4. Learned counsel for respondent No. l strongly opposes the petition and submits that the petitioner himself having elected to file the second and third private complaints on the dismissal of the first and second, cannot now challenge the order, dated 4-5-1971. As regards the request for the transfer of evidence, learned counsel submits that the same is not permissible in law.

5. I agree with the learned counsel for the petitioner that on 4-5-1971 the first complaint could not have been dismissed by the trial Magistrate in default, because the matter before the Court was only with regard to the framing of the charge and one of the offences for which respondent No.1 was charged, namely, that under section 448, P . P . C., was cognizable and not compoundable. However, the petitioner instead of filing a revision petition straightway against the order, dated 4-5-1971, elected to file a second private complaint against respondent No.1 and' his three companions in respect of the same offences, which having been dismissed, he elected to file a third complaint against the same persons for the same offences, which complaint is pending. In these circumstances, the petitioner having himself elected to start fresh proceedings, cannot now be permitted to resuscitate the first order of dismissal. As regards the alternative prayer of the petitioner for the transfer of evidence recorded in the first complaint case to the record of the third complaint, since no request to this effect was made before the trial Magistrate, the same cannot be ipso facto dealt with by me in revisional jurisdiction. The petitioner may, if he so desires, move an, application to the trial Magistrate for the said purpose. In these', circumstances, no ground appears for interference at all.

6. For the foregoing reasons, there being no merit in this revision petition,' the same is dismissed.

H.A.K./5570/L Revision petition dismissed.

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