-S. 200--Filing of private complaint--Dismissal of
complaint--Dismissal of criminal revision--Recording of statement of accused
persons-
PLJ 2022 Lahore 420
Criminal Procedure
Code, 1898 (V of 1898)--
----S. 200--Filing of
private complaint--Dismissal of complaint--Dismissal of criminal
revision--Recording of statement of accused persons--Objection regarding
recording of statements of respondents--After receipt of complaint statement of
complainant was recoded on oath--No procedural illegality or irregularity has
been committed by Magistrate in issuing notices to respondents, recording their
statements at cursory stage and then satisfying its conscience about truth or
falsehood of complaint--Petitioner was booked in an FIR No. 540/2020 under
section 25-D of Telegraph Act registered at police station Shah Rukn-i-Alam,
Multan and as a matter of fact it was episode of his arrest which was
transformed into his abduction by petitioner either for himself or for his
family members--Inquiring Court has rightly passed impugned
order--Consequently, I see no illegality in impugned order which could warrant
interference by High Courts--Petition dismissed.
[Pp.
422 & 423] A, B, C & D
PLD
1972 Lahore 185, 1985 Cr.J 1309 & AIR 1935 Lah. 14 ref.
Malik Saeed Ijaz, Advocate.
Mr. Jam Muhammad Afzal Gasoora, Assistant Advocate General.
Mr. Zafar Iqbal Sheikh, Advocate for Respondent No. 2.
Date of hearing: 23.9.2021.
PLJ 2022 Lahore 420
[Lahore High Court Bahawalpur Bench]
Present: Muhammad Amjad Rafiq, J.
Dr. MUHAMMAD JEHANGIR AKBAR--Petitioners
versus
STATE, etc.--Respondents
W.P. No. 4658 of 2021-BWP, decided on 23.9.2021.
Order
Briefly the facts of the case relevant for the decision of
instant writ petition are that Dr. Muhammad Jehangir petitioner filed
a private complaint against the respondents, wherein, after giving background
of some previous litigation, the precise allegation was that on 19.10.2020 at
about 9/10.00 pm. He (the petitioner/complainant) along with Umar Daraz,
Malik Mumtaz Hussain and Haji Muhammad Afzal came out
of the house and when reached the shop of Pir Gi, accused
(Respondents No. 1 to 3 and 5 of the complaint) who were standing there caught
hold of him, tortured him, accused/Respondent No. 1 from petitioner's pocket
took, out Rs. 17500/-, one mobile SI Pro VIVO and one signed cheque No.
00016986 of Askari Bank and by keeping him in unlawful custody kept
him roaming in official vehicle ڈالا and then accused/Respondent No. 1 made a call
to accused/ Respondent No. 4 and on his asking the police of police station
Shah Rukn-e-Alam came there about three hours later and told that a
case had been registered against the petitioner. The petitioner was taken to
police station Shah Rukn-e-Alam and was confined there. It was
further alleged that accused/respondents were disturbing his family life and
were harassing him by converting family affairs into criminal cases.
2. On receipt of complaint the learned trial Magistrate, Lodhran after
inquiry (recording statements of accused/Respondents No. 1 to 3) dismissed the
complaint vide order dated 13.03.2021. The said order was
challenged by the petitioner through a criminal revision, which too was
dismissed by learned Additional Sessions Judge vide order
dated 08.04.2021, hence, the instant writ petition.
3. The learned counsel for the petitioner while attacking the
impugned orders on legal premises argued that the inquiry Court at the time of
recording cursory evidence summoned the accused/ respondents, recorded their
statements and then formed the opinion in the light of material that no offence
was committed, therefore, declined to issue the process. The contention of
learned counsel for the petitioner is that such practice is alien to criminal
proceedings as required under section 202 Cr.P.C, which does not ordain
participation of the accused at preliminary stage. The learned counsel further
added that otherwise, sufficient material was available with the complainant/
petitioner to connect the respondents with the commission of the crime, but the
learned inquiring Court acted in haste in dismissing the complaint at initial
stage without evening properly summoning the accused/respondents.
4. On the other hand, learned counsel for the respondents while
referring the case "Anwar Ali Khan and others versus Wahid Bux and
others” (1991 SCMR 1608) and “Muhammad Panjal versus Ghulam Shabir Jat, etc (NLR
2004 Criminal 224) opposed the above submissions and defended the impugned
orders by submitting that participation of accused/respondents is not an
illegality, rather an assistance to the Court to form an opinion before issuing
the process, and such practice is not illegal in any manner.
5. Heard. Record perused.
6. So far as legal objection of learned
counsel for the petitioner with regard to recording of statements of the
respondents at cursory stage is concerned, the language of Section 202 Cr.P.C.
by itself is so clear that no ambiguity is left to say that the Court before
whom a complaint of an offence has been made or sent to him under section 190
sub-section (3), or transferred to it under Section 191 or 192, may, if it
thinks fit, for reason to be recoded postpone the issue of process for
compelling the attendance of the person complained against, and either enquire
into the case itself or direct any inquiry or investigation to be made by any
Justice of the Peace or by a police officer or by such other person as it
thinks fit, for the purpose of ascertaining the truth or falsehood of the
complaint. The only pre-condition which has been imposed before passing an
order under sub-section (1) of Section 202 Cr.P.C. is examination of the
complainant on oath under Section 200 Cr.P.C. and in this case the
available record shows that after receipt of complaint the statement of the
complainant was recoded on oath on 14.01.2021 i.e. before the
impugned order dated 13.03.2021. In the case "Anwar Ali Khan and
others versus Wahid Bux and ethers" (1991 SCMR 1608)
the Hon'ble Supreme Court of Pakistan after detailed discussion with
reference to Section 202 and 203 Cr.P.C, pinned down the legal proposition
by holding that:
"We are inclined to hold that in a
preliminary inquiry under section 202, Cr.P.C. it is not contemplated that
a notice be issued to the accused person before issuing a process, as was
pointed out by A.S, Faruqui, J. but at the same time, if the Court holding
such an inquiry issues such a notice to the accused person before issuing process,
if would not vitiate the inquiry. We are also of the view that there is a
marked distinction as to the approach of appraisal of evidence at the time of
holding of a preliminary inquiry and at the regular hearing of a criminal case.
At the former stage, the Magistrate or the Court is not expected to examine the
evidence or the case minutely, whereas at the latter stage, the Magistrate or
the Court is required to appraise the evidence thoroughly and to record its
findings on the basis of such appraisal, and that any benefit of doubt arising
out of such appraisal should be given to the accused person. "
While reiterating that
it is for the Court only that while making an inquiry in terms of Section
202 Cr.P.C. it may issue notices to the accused party to join the inquiry
or not, however, the accused party itself cannot claim the right of audience at
pre-summoning or pre-process stage. In this respect guidance has been sought
from the case
"Mst. Bashir Begum and 2 others
versus Ghulam Nabi And Another" (PLD 1972 Lahore 185); "Somu alias Somasundaram and
others v. The State and another" (1985 Crl.L.J. 1309)
and "Abdulla Jan vs. Totigul" (AIR 1935 Pesh 14).
Therefore, here in this case no procedural illegality or irregularity has been
committed by the learned Magistrate in issuing notices to the
accused/respondents, recording their statements at cursory stage and then
satisfying its conscience about truth or falsehood of the complaint.
7. Even on merits, material/documents in abundance are available
on the file to reflect that complainant/petitioner was booked in an FIR No.
540/2020 under section 25-D of the Telegraph Act registered at police station
Shah Rukn-i-Aalam, Multan and as a matter of fact it was episode of his
arrest in the above said case, which was transformed into his abduction or
harassment by the complainant/petitioner either for himself or for his family
members. There is no doubt that while assessing the truth or falsehood of a
private complaint at initial stage, it was not for the said Court to have
evaluated the material on the touchstone of a full-fledged trial and it had
only to take a view after cursory glance at the material available before it,
but at the same time, with such a background as is in the instant case, the
inquiry Court of course must have been more vigilant in forming its opinion
about truth or falsehood of the complaint and considering the facts and
circumstances of the case, I am convinced that the inquiring Court has rightly
passed the impugned order. Consequently, I see no illegality in the impugned
order which could warrant interference by this Courts. The instant writ
petition, therefore, is dismissed.
(Y.A.) Petition dismissed
