PLJ 2023 Cr.C. 361
Criminal Procedure Code, 1898 (V of 1898)--
----S. 200--Examination of complainant--Procedure for entertaining a private complaint--After receiving private complaint concerned Area Magistrate shall immediately examine complainant on oath and his statement will be recorded and signed by him as well as learned Magistrate--In this way, other material/evidence of complainant should be brought on record after resolving controversy. [Pp. 367 & 368] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 203--Dismissal of complaint-- Section 203, Cr.P.C. pertains to submission of complaint or transfer or its dismissal--The said section] is described as under:
203. Dismissal of complaint: [The Court], before whom a complaint is made or to whom it has been transferred, 2s [or sent] may dismiss complaint, if, after considering Statement on oath (if any) of complainant and result of investigation or inquiry (if any) under Section 202 there is in his judgment no sufficient ground for proceeding--In such cases he shall briefly record his reasons for so doing. [P. 368] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 202--The material produced on record in shape of cursory evidence and result of investigation or inquiry, if any, under Section 202, Cr.P.C. learned trial Court will pass an order for issuance of process against accused if sufficient ground is available for proceeding, in case of otherwise, dismissal of complaint, no other evidence can be considered by it at that stage. [P. 368] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 204--Issue of process--It is settled proposition of law that requisite conditions mentioned in Section 204, Cr.P.C. are availability of sufficient grounds which can satisfy Court for issuance of process against accused to appear in Court--Availability of some evidence on record is sufficient for summoning of an accused--Section 204, Cr.P.C. provided formation of ‘opinion’ by taking cognizance of an offence and availability of ‘sufficient grounds for proceeding--For recording conviction, there must be evidence in support thereof but no such evidence is required for issuance of process and summoning of accused persons. [P. 369] D
Private Complaint--
----Proposition of law--It is also settled proposition of law that after filing a complaint Court should examine complaint on oath and evidence produced by complainant party should be brought on record which shall be duly signed by complainant and Area Magistrate and if complaint is made in writing Court may examine case on oath--However, Court if not certain about truthfulness or otherwise of complaint, then on postponement of issuance of process, for which reasons will have to be recorded, it may direct investigation/inquiry to be conducted in order to ascertain truth or falsehood of complaint and after arriving at a conclusion in either way, Court then, may proceed either under Section 204, Cr.P.C. for issuance of process or u/S. 203, Cr.P.C. dismiss complaint--Both proceedings u/S. 203 and 204, Cr.P.C. based upon availability of sufficient grounds have been taken by Court as existence of prima facie case. [P. 369] E
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 249-A/265-K--The burden of proof in preliminary inquiry of issuance of process is more lessor as compared to burden of proof of prosecution at time of full-fledged trial because in trial prosecution has to prove its case beyond reasonable doubt but at stage of issuance of process complainant was not duty bound to discharge his responsibility heavily--It is also noteworthy that at initial stage learned trial Court has to make tentative assessment of cursory evidence produced by complainant party and accused has no right of audience at this stage meaning thereby version of defence which will be produced later on cannot be discussed while making preliminary inquiry--Even otherwise, if occurrence against accused is baseless then he has a remedy in shape of acquittal under Section 249-A/ 265-K, Cr.P.C. prior to further proceedings in case to be taken--Similarly, mere summoning of an accused by Court to answer charges levelled against him does not mean that his right has been infringed rather an opportunity is given to, him to explain his position. [P. 369] F
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 22-A(6) & 200, 435 & 439--Criminal revision--Private complaint--Cross-version--Dismissal of complaint--If material available before Court manifests that prima facie cognizable offence is made out then learned Court should issue process against accused because at this stage a complete full-fledged trial is not required--Trial Court has not dismissed complaint of petitioner on ground of delay--Even otherwise, every case is to be decided on its own merits--The case law cited by learned counsel for private respondents is not applicable in instant case because firstly police refused to record cross version of petitioner, being dissatisfied with police hierarchy, he constrained to file an application u/S. 22-A (6), Cr.P.C. for recording of cross version which was allowed by Court of competent jurisdiction and thereafter same was recorded but police turned down cancelled cross version recorded by petitioner and thereafter petitioner filed private complaint--After going through impugned order between lines it transpires that Additional Sessions Judge has not applied its sagacious and judicial mind--From reading of cursory statements recorded by CW1 and CW2 as well as documentary evidence produced by petitioner, prima facie a cognizable offence is made out but trial Court has ignored this fact. In this way, delay in filing a private complaint in this case is quite natural and not fatal for prosecution as observed by Hon’ble Supreme Court of Pakistan.
[Pp. 370 & 371] G & H
2010 SCMR 1816, 2010 SCMR 105, 2008 SCMR 853, PLD 2008 Lahore 441 & PLD 2009 Lahore 444.
M/s. Abid Saqi and Shaukat Nawaz Gondal, Advocates for Petitioner.
Hafiz Asghar Ali, Deputy Prosecutor General for State.
Mr. Hassan Iqbal Warraich, Advocate for Respondent Nos. 2
to 4.
Date of hearing: 13.5.2022.
PLJ 2023 Cr.C. 361
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
SAJJAD ALI--Petitioner
versus
LEARNED ADDITIONAL SESSIONS JUDGE, MANDI
BAHA-UD-DIN and 12 others--Respondents
Crl. Rev. No. 56556 of 2020, decided on 13.5.2022.
Judgment
Through this criminal revision filed under Sections 435 and 439, Cr.P.C. the petitioner has challenged the vires of order dated 13.10.2020 passed by learned Additional Sessions Judge, Mandi Baha-ud-Din.
2. The germane facts necessary for the disposal of this petition are that the petitioner being an accused of case FIR No. 23/2020 dated 12.01.2020 under Sections 302, 324, 148, 149, 109, PPC registered at police station Miana Gondal, District Mandi Baha-ud-Din. The concise allegation levelled in the FIR is that the petitioner and other co-accused while armed with deadly weapons committed murder of Haider Ali and injured Yasir Ali (Respondent No. 9) as well as Shamas Zafar (Respondent No. 3). The motive behind the occurrence was that one day ago some hot words were exchanged between the parties.
It was further averred that on 12,01.2020 the petitioner filed an application before the SHO Police Station Miana Gondal for recording of his cross version in the above mentioned FIR as he also received injuries in that occurrence. The gist of the cross version is that on 12.01.2020 at about 03.00 p.m. the petitioner was going to his house after taking medicine for his paternal aunt and when he reached in street Masjid Wali, accused/Respondent Nos. 2 to 10 along with 5/6 unknown persons while armed with their respective firearm weapons, made firing upon him with the intention to murder him. The fires landed on different parts of his body. The petitioner while exercising right of self defence fired with his rifle .222 bore due to which some of accused also received injuries. Mukhtar and Muhammad Asif along with other residents of the locality attracted the spot and witnessed the occurrence. The petitioner further averred that SHO Police Station Miana Gondal refused to record the cross version of the petitioner, whereupon, the petitioner on 28.01.2020 filed an application under Section 22-A (6), Cr.P.C. before the learned Ex-Officio Justice of Peace, Malikwal which was allowed vide order dated 21.04.2020 by observing that a cognizable offence is made out and SHO Police Station Miana Gondal was directed to record the version of the petitioner and then to proceed in the matter strictly in accordance with law.
The petitioner asserted that in spite of order dated 21.04.2020 passed by learned Ex-Officio Justice of Peace, SHO Police Station Miana Gondal did not record the cross version of the petitioner. On 27.04.2020 the petitioner filed compliance petition before the Court of learned Ex-officio Justice of Peace, whereupon, cross version of the petitioner was recorded on 20.05.2020. The petitioner further submitted that Respondent No. 11 without investigating the matter fairly and honestly cancelled the cross version of the petitioner vide case diary dated 21.05.2020 just one day after registering the same with mala fide intention and ulterior, being in league with the other side. The petitioner being aggrieved/dissatisfied from the faulty investigation carried out by the said respondent, filed private complaint on 26.08.2020 which was subsequently entrusted to learned Additional Sessions Judge, Mandi Baha-ud-Din who after recording cursory statements of CWs dismissed the private complaint vide order dated 13.10.2020 filed by the petitioner illegally and unlawfully. Hence, the present criminal revision before this Court.
3. It is inter alia contended by learned counsel for the petitioner that learned Additional Sessions Judge, Mandi Baha-ud-Din (Respondent No. 1) has wrongly dismissed the private complaint filed by the petitioner because it has been well settled by now that cross-complaint will run side by side and judgment in the State as well as cross version complaint case should be announced simultaneously; that the learned trial Court has not taken the instant case in its true perspective and ignored the well settled principle of law that after recording the cursory evidence, he has to make a bird eye view of evidence/material produced by the complainant party and from the tentative assessment of the evidence available on the file if prima facie a cognizable offence is made out then the learned trial Court is duty bound to pass the summoning order of the accused, whereas, in this case the learned trial Court has travelled beyond its jurisdiction. Lastly submitted that impugned order dated 13.10.2020 passed by learned Additional Sessions Judge, Mandi Baha-ud-Din is nullity in the eye of law and liable to be set aside.
4. Contrarily, learned Deputy Prosecutor General assisted by learned counsel for the private respondents contended that learned Additional Sessions Judge has passed the impugned order in accordance with law which cannot be termed as perverse, illegal and unwarranted rather the same has been passed by the learned trial Court after applying its sagacious and judicial mind; that impugned order has no jurisdictional error and same is not liable to be interfered with.
5. I have mused over the arguments rendered by the learned counsel for the parties and gone through the record with their eminent assistance.
6. I have noted that the petitioner who is also accused of case FIR No. 23/2020 under Sections 302, 324, 148, 149, 109, PPC registered at Police Station Miana Gondal and facing the trial in the State case got recorded his cross version during the course of investigation which was turned down by the Investigating Officer vide case diary dated 21.05.2020. Being dissatisfied with the police investigation the petitioner filed private complaint of cross version under Sections 324, 148, 149, 166, 167, 168, PPC read with Rule 155-C of Police Order, 2002. Sajjad Ali petitioner (complainant) appeared as CW1 and got recorded his cursory statement, vice versa, Mukhtar Ahmad got recorded his cursory statement as CW2. Similarly, by closing cursory statement, learned counsel for the petitioner tendered cross version of FIR No. 23/2020 (Exh. PC), MLC of Sajjad Ali petitioner (Ex. PD), application under Section 22-A/B, Cr.P.C. (Exh. PE) along with orders (Exhs. PE and PE/1), contempt petition tilted as Sajjad Ali vs. SHO along with order dated 21.05.2020 (Exhs. PF and PF/1), post-mortem report of Haider Ali (Exh. PG), FIR No. 23/2020 (Exh. PH) and copy of application for registration of FIR to SHO by Sajjad Ali petitioner (Mark-A).
7. After hearing the arguments, the learned Additional Sessions Judge, Mandi Baha-ud-Din dismissed the complaint vide order dated 13.10.2020 with the following observations:
“4. Perusal of record shows that present complainant is nominated accused in case FIR No. 23/20, under Section 302, etc. PPC Miana Gondal which was lodged on 12.01.2020 against him as well as other co-accused. Though his medical was conducted but there is no injury of his vital part. Even otherwise, the complainant has submitted in the complaint as well as in his statement/CW-1 that all the accused Nos. 1 to 9 made firing upon him but no specific role has been ascribed to any alleged respondent.
5. Further, cross-version of the complainant was recorded through writ petition under Section 22-A & B, Cr.P.C. but cross version of complainant found to be false vide zimini dated 21.05.2020 and same was turned down by police after thorough investigation and probe and I.O. opined that at the time of occurrence, injured Sajjad (present complainant) received injuries at the hands of his co-accused persons who were making firing along with present complainant upon the other party and resultantly one person was murdered and two persons were seriously injured. It is quite imperative to mention here that complainant Sajjad made burst with his Kalashnikov upon Haider Ali which hit on his chest, belly and beneath the belly and present complainant is main accused of said murder case FIR No. 23/2020 under Section 302, etc PPC P.S. Miana Gondal. This complaint has been filed after considerable delay.
6. Prima facie crux of the above discussion shows that instant complaint has been filed as counterblast and there is no substance available on the record to summon the respondents in order to face the trial. Hence, this private complaint is dismissed. File be consigned.”
8. To better appreciate arguments of learned counsel for the parties and to decide the controversy in dispute, it is expedient to have a glance over some provisions of law pertaining to private complaint and its decision. Section 200, Cr.P.C, provides a mechanism/procedure for entertaining a private complaint which is hereby reproduced as under:-
200. Examination of complainant;
A Magistrate taking, cognizance of an offence on complaint shall at once examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate:
Provided as follows:
(a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under Section 192 [or sending it to the Court of Session];
(aa) when the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties;
(b) [Omitted A.O., 1949, Sch.];
(c) when the case has been transferred under Section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.
From the bare reading of op-cit provision of law it manifests that after receiving private complaint the concerned Area Magistrate shall immediately examine the complainant on oath and his statement will be recorded and signed by him as well as learned Magistrate. In this way, the other material/evidence of the complainant should be brought on record after resolving controversy.
9. It is also noteworthy that Section 203, Cr.P.C. pertains to submission of complaint or transfer or its dismissal. The said section is described as under:
203. Dismissal of complaint: [The Court], before whom a complaint is made or to whom it has been transferred, 2s [or sent] may dismiss the complaint, if, after considering the Statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under Section 202 there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing.
10. It is also necessary to take into consideration Section 204, Cr.P.C. which deals with the issuance of process and the same is hereby reproduced as under for ready reference.
204. Issue of process:
(1) If in the opinion of a [Court] taking cognizance of an offence there is sufficient ground of proceeding, and the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, [it] shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, [it] may issue a warrant, or, if [Court] or if [it] thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such [Court] if as if it has no jurisdiction itself some other Court having jurisdiction.
(2) Nothing in this section shall be deemed to affect the provisions of Section 90.
(3) When by any law for the time being in force any its process-fees or other fees are payable, no process shall be issued until the fees are paid, and if such fees are not paid within a reasonable time, the Court may dismiss the complaint.
11. From the study of supra mentioned Sections it is crystal clear that after taking into consideration the material produced on the record in the shape of cursory evidence and the result of investigation or inquiry, if any, under Section 202, Cr.P.C. the learned trial Court will pass an order for issuance of process against the accused if sufficient ground is available for proceeding, in case of otherwise, dismissal of complaint, no other evidence can be considered by it at that stage.
12. Prima facie case does not mean that a case proved up to the hilt but a case should be established if the evidence produced in corroboration of the same is believed. It is settled proposition of law that requisite conditions mentioned in Section 204, Cr.P.C. are the availability of sufficient grounds which can satisfy the Court for issuance of process against the accused to appear in the Court. Availability of some evidence on record is sufficient for the summoning of an accused. Section 204, Cr.P.C. provided formation of ‘opinion’ by taking cognizance of an offence and availability of ‘sufficient grounds for proceeding. For recording conviction, there must be evidence in support thereof but no such evidence is required for issuance of process and summoning of accused persons. Expression ‘sufficient grounds’ used in Section 204, Cr.P.C. means the presence of facts and evidence prima facie constituting an offence to enable the Court to issue process. It is also settled proposition of law that after filing a complaint the Court should examine the complaint on oath and evidence produced by the complainant party should be brought on record which shall be duly signed by the complainant and Area Magistrate and if the complaint is made in writing the Court may examine the case on oath. However, the Court if not certain about the truthfulness or otherwise of the complaint, then on postponement of the issuance of process, for which reasons will have to be recorded, it may direct investigation/inquiry to be conducted in order to ascertain the truth or falsehood of the complaint and after arriving at a conclusion in either way, the Court then, may proceed either under Section 204, Cr.P.C. for the issuance of process or under Section 203, Cr.P.C. dismiss the complaint. Both the proceedings under Sections 203 and 204, Cr.P.C. based upon the availability of sufficient grounds have been taken by the Court as the existence of prima facie case. I am of the view that while deciding the point of issuance of process, the Court should have taken the bird eye view because it is never a full-fledged trial and the Court is not competent to examine the material in depth. The burden of proof in preliminary inquiry of issuance of process is more lessor as compared to burden of proof of prosecution at the time of full-fledged trial because in the trial the prosecution has to prove its case beyond reasonable doubt but at the stage of issuance of process the complainant was not duty bound to discharge his responsibility heavily. It is also noteworthy that at the initial stage the learned trial Court has to make the tentative assessment of the cursory evidence produced by the complainant party and accused has no right of audience at this stage meaning thereby version of defence which will be produced later on cannot be discussed while making the preliminary inquiry. Even otherwise, if the occurrence against the accused is baseless then he has a remedy in the shape of acquittal under Sections 249-A/ 265-K, Cr.P.C. prior to further proceedings in the case to be taken. Similarly, mere summoning of an accused by the Court to answer the charges levelled against him does not mean that his right has been infringed rather an opportunity is given to, him to explain his position.
13. The nut shall result of above said discussion is that if the material available before the Court manifests that prima facie cognizable offence is made out then the learned Court should issue process against the accused because at this stage a complete full-fledged trial is not required. A reference in this respect may be made to the case of Ali Dost vs. Munawar Ali and others (2008 SCMR 853) wherein it has been held in Paragraph No. 5 as under:
5. We have heard learned counsel for the parties and have gone through the impugned order as well as order passed by the trial Court and other material so made available on record. In our considered opinion it is not a case of the category in which the complaint should have been dismissed outrightly for want of incriminating evidence particularly in view of the statement of the complainant under Section 200, Cr. P. C. and the medical evidence available on record and the trial Court may have been given opportunity to proceed with the matter and then to decide the fate of the case. Therefore, without going into merits of the case in depth it is appropriate to remand the case to the trial Court for proceeding with the complaint expeditiously and dispose of the, matter as far as possible within a period of three months.
Further reliance can also be placed from the following cases reported as Initial Rubbani alias Billu vs. The State and another (PLD 2008 Lahore 441) and Abid Shah and nine others vs. Additional Sessions Judge, Sheikhupura and two others (PLD 2009 Lahore 444).
14. Insofar as the contention made by learned counsel for the private respondents that the is unexplained delay of eight months in filing the complaint and due to this reason this criminal revision has rightly been dismissed in the light of case law reported as Zafar and others vs, Umar Hayat and others (2010 SCMR 1816) is concerned, I have noted that the learned trial Court has not dismissed the complaint of the petitioner on the ground of delay. Even otherwise, every case is to be decided on its own merits. The case law cited by learned counsel for the private respondents is not applicable in the instant case because firstly the police refused to record the cross version of the petitioner, being dissatisfied with the police hierarchy, he constrained to file an application under Section 22-A (6), Cr.P.C. for
recording of cross version which was allowed by the Court of competent jurisdiction and thereafter the same was recorded but the police turned down cancelled the cross version recorded by the petitioner and thereafter the petitioner filed private complaint. After going through the impugned order between the lines it transpires that the learned Additional Sessions Judge has not applied its sagacious and judicial mind. From the reading of cursory statements recorded by Sajjad Ali (CW1) and Mukhtar Ahmad (CW2) as well as documentary evidence produced by the petitioner, prima facie a cognizable offence is made out but the learned trial Court has ignored this fact. In this way, delay in filing a private complaint in this case is quite natural and not fatal for the prosecution as observed by the Hon’ble Supreme Court of Pakistan in the case law titled as Muhammad Fayyaz Khan v. Ajmeer Khan and others (2010 SCMR 105).
15. As corollary of above said discussion, I have reached at irresistible conclusion that learned Additional Sessions Judge, Mandi Bah-ud-Din has passed the impugned order dated 13.10.2020 on wrong premises of law, not applying its sagacious and judicial mind by violating the law and procedure on the subject and the same is hereby set aside. Consequently, the instant criminal revision is allowed and the matter is remanded to the learned trial Court with the direction to strictly follow the law and procedure on the subject and then shall pass a speaking and well-reasoned order afresh.
(A.A.K.) Revision allowed
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