PLJ 2023 Cr.C. (Note) 4
Private Complaint--
----Cognizable--Private complaint was filed under different penal provisions some of which were cognizable and some were non-cognizable. As per settled law a case is to be treated as cognizable if along with non-cognizable provisions some cognizable offences are also applied--In Section 4(f) of Code of Criminal Procedure, 1898 term cognizable case, cognizable offences are used. [Para 4] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 247--Private complaint--Cognizable--A private complaint cannot be dismissed u/S. 247, Cr.P.C. if charge pertains to commission of cognizable offence or is comprising upon non-compound offence--Admittedly, offence u/S. 420 cognizable offence, whereas, offences u/Ss. 468, PPC are non-compoundable thus due to foregoing reasons there is no question of dismissing private complaint in terms of Section 247, Cr.P.C. [Para 4] B
2006 PCr.LJ 1101.
Mr. Muhammad Mushtaq Ahmed Dhoon, Advocate and Ms. Naila Mushtaq Dhoon, Advocate for Petitioner.
Ms. Maida Sobia, Deputy Prosecutor General for State.
Ch. Abdul Qaddus, Advocate for Complainant.
Date of hearing: 29.6.2021.
PLJ 2023 Cr.C. (Note) 4
[Lahore High Court, Lahore]
Present: Ch. Abdul Aziz, J.
MOHAMMAD ASIM--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 26256-M of 2021, decided on 29.6.2021.
Order
Through the instant petition moved under Section 561-A, Cr.P.C. Mohammad Asim (petitioner) has called in question the vires of order dated 12.10.2020, whereby, learned Judicial Magistrate, Model Town, Lahore dismissed private complaint filed by the petitioner due to non-prosecution as well as the order dated 10.02.2021 passed by the revisional Court whereby, he upheld the finding of learned Area Magistrate.
2. The brief facts which led to the filing of instant criminal miscellaneous are to the effect that Muhammad Asim (petitioner) filed a private complaint against Muhammad Zafar (Respondent No. 2) under Section 420, 468, 471, PPC read with 3 Money Lending Act 2007. In the aforementioned private complaint Muhammad Zafar (Respondent No. 2) was summoned by the learned Area Magistrate vide order dated 08.11.2018. Subsequent thereto since Muhammad Zafar resorted to reluctance in his appearance before the learned Area Magistrate thus initially his bailable and subsequently non-bailable warrants of arrest were issued. On 12.10.2020, since neither the petitioner nor his counsel entered appearance, thus the private complaint was dismissed due to non-prosecution by the learned Judicial Magistrate,
3. Arguments heard and record perused.
4. In the wake of facts mentioned above, firstly it is noticed that the private complaint was filed under different penal provisions some of which were cognizable and some were non-cognizable. As per settled law a case is to be treated as cognizable if along with non-cognizable provisions some cognizable offences are also applied. For this reason in Section 4(f) of Code of Criminal Procedure, 1898 the term cognizable case, cognizable offences are used. In the same stretch it is observed that a private complaint cannot be dismissed under Section 247, Cr.P.C. if the charge pertains to the commission of cognizable offence or is comprising upon non-compoundable offence. Admittedly, offence under Section 420 PPC is cognizable offence, whereas, offences under Sections 468, 471 PPC are non-compoundable thus due to foregoing reasons there is no question of dismissing the private complaint in terms of Section 247, Cr.P.C. The aforementioned view of this Court is further supported from the observation of the Hon’ble Federal Shariat Court of Pakistan, expressed in case titled as Mst.Akhtar Bano v. Umar Baz and another “2006 P Cr.LJ 1101”, an excerpt therefrom is being reproduced hereunder:-
“However, without touching the question as to whether the learned Sessions Judge himself was competent to entertain the complaint, I am inclined to hold that since both the offences i.e. under Sections 10 and 11 of “the Ordinance” whereunder the complaint was filed, were cognizable and non-compoundable, hence, the complaint could not have been dismissed for non-prosecution.”
5. In the foregoing circumstances, the dismissal of private complaint due to non-appearance of the complainant was un-called for. Therefore, the instant petition is accepted and the impugned orders are set-aside. The private complaint will deemed to be pending before learned trial Court for further proceedings in accordance with law.
(A.A.K.) Petition accepted
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