PLJ 2023 Cr.C. 329
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A(6)--It is common practice that the aggrieved person first approaches the police for redressal of his grievance through registration of the case, if remains dissatisfied, then files application u/S. 22-A(6), Cr.P.C. before Ex-Officio Justice of Peace and sometime also invokes constitutional jurisdiction of this Court as well as of Hon’ble Supreme Court of Pakistan for registration of the case and usually complaint is filed as a last resort. Delay by itself in filing the complaint cannot be taken as fatal to reject the evidence in support thereof, which may otherwise be entitled to credence. Even otherwise, delay in filing the complaint is examined in the light of peculiar facts and circumstances of each case.
[P. 333] A
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 435 & 439--Criminal revision--By now it is well settled that feeling dissatisfied by the registration of case and/or investigation conducted by the police, aggrieved person can file complaint and even against those persons, who were not nominated as accused in the first information report registered by the police regarding the same occurrence; complaint can be filed against different set of accused persons with different set of witnesses as well as with different mode of occurrence as compared to state/challan case but said difference cannot be considered as a bar for entertaining the complaint or proceeding with the same and due to said difference, complaint cannot be dismissed--Needless to add that during trial of the case, accused persons would have every opportunity for cross-examining the complainant and other witnesses, bringing their oral as well as documentary version on the record and to falsify the allegations mentioned in the complaint, they would have also opportunity to produce evidence in their defence as well as themselves appear as their own witness under Section 340(2) Cr.P.C. for disproving the allegations levelled against them--In the peculiar “facts and circumstances” of the case, impugned order has been passed while keeping in view the settled principles of law on the subject as well as facts of the case and no illegality has been found in the same, therefore, needs no interference. Resultantly, instant revision petition is without merits and is hereby dismissed.
[Pp. 334 & 335] B, D & E
Criminal Procedure Code, 1898 (V of 1898)--
----S. 204--For issuance of process for the purpose of summoning the accused in the complaint, law only requires availability of “sufficient ground” as provided under Section 204 Cr.P.C. and not the “reasonable ground”. Term “sufficient ground” for “proceeding” against the accused person in complaint mentioned in Section 204 Cr.P.C. cannot be equated with term “reasonable ground” for “believing” against the accused that he has been guilty of the offence within the contemplation of Section 497 (1) Cr.P.C. and in this regard, guidance has been sought from case of “Sarwar and others versus The State and others” (2014 SCMR 1762). “Prima facie case”, does not mean a case proved beyond shadow of doubt but a case which can be established if evidence led in support of the same is believed. [P. 334] C
Mr. Muhammad Maqsood Buttar, Advocate for Petitioners.
Mr. Ali Hassan, Additional Prosecutor General for Sate.
Malik Muhammad Aslam, Advocate for Respondent No. 1.
Date of hearing: 12.4.2022.
PLJ 2023 Cr.C. 329
[Lahore High Court, Lahore]
Present: Farooq Haider, J.
versus
GHULAM HAIDER and 2 others--Respondents
Crl. Rev. No. 1177 of 2015, heard on 12.4.2022.
Judgment
Farooq Haider, J.--Through instant revision petition, petitioners have challenged the vires of order dated 12.10.2015
passed in complaint case titled as “Ghulam Haider versus Muhammad Yaar etc.” by learned Addl. Sessions Judge, Chunian/trial Court whereby petitioners/accused persons have been summoned to face
the trial.
2. Brief facts for disposal of instant revision petition are that Muhammad Abbas (now arrayed as Respondent No. 2 in the instant petition) got registered case vide F.I.R. No. 56/12 dated 22.02.2012, under Sections: 302, 148, 149, 109 PPC at Police Station: Saddar Chunian, District: Kasur regarding murder of his father namely Muhammad Sharif. However, Ghulam Haider son of Muhammad Sharif (now arrayed as Respondent No. 1 in the instant petition, brother of Muhammad Abbas/Respondent No. 2) also filed application for registration of case regarding murder of his father i.e. Muhammad Sharif, before Station House Officer, Police Station: Saddar Chunian, District: Kasur (copy whereof is available at Page No. 20 of instant petition) and then moved application under Section 22-A, B Cr.P.C. for registration of second F.I.R. regarding the occurrence, which was disposed of vide order dated 04.09.2012 passed by learned Addl. Sessions Judge/Ex-Officio Justice of Peace, Chunian with a direction to Ghulam Haider (now Respondent No. 1) to move written application before the Station House Officer and Station House Officer of police station (concerned) was directed to proceed further in the matter under Section 154 Cr.P.C.; said order of Ex-Officio Justice of Peace, Chunian was challenged by Sakhawat Ali (petitioner No. 5 in the instant petition) before this Court through Writ Petition No. 23227/2012 titled as “Sakhawat Ali versus Addl. Sessions Judge, etc.” which was accepted vide order dated 14.01.2015 passed by this Court by declaring aforementioned order passed by Ex-Officio Justice of Peace as “ of no legal consequences”; feeling aggrieved, Ghulam Haider (now Respondent No. 1) challenged said order through Intra Court Appeal No. 235/2015, which was disposed of vide order dated 02.06.2015 passed by learned Division Bench of this Court; relevant portion of said order is hereby reproduced:
“On reconsideration learned counsel for the appellant wishes to withdraw this appeal with the contention that the appellant would like to file a private complaint against the respondents concerned.
2. Disposed of.”
Thereafter, Ghulam Haider (now Respondent No. 1) filed complaint regarding aforementioned occurrence i.e. murder of his father against present petitioners and two unknown accused persons in the Court (copy whereof is available at Page No. 13 to 15 of instant petition), cursory statement of Ghulam Haider (complainant/CW-1) was recorded by the learned trial Court in the complaint as eye-witness of the occurrence and then said complaint was sent to the learned Area Magistrate, Chunian for holding an inquiry under Section 202 Cr.P.C. and submitting the report; learned Area Magistrate, Chunian recorded statements of two other eye-witnesses namely Muhammad Imran (CW-2), Muhammad Abbas son of Muhammad Mansha (CW-3), also recorded statement of complainant regarding production of copy of postmortem report of deceased of the case, copy of F.I.R. No. 56/12, copy of application for registration of case, copy of petition under Section 22-A, B Cr.P.C. along with order dated 04.09.2012 and submitted inquiry report dated 29.09.2015 before learned trial Court; relevant portions of said report are hereby reproduced:
“The above said private complaint was filed by Ghulam Haider and after recording cursory statement of CW-1 Ghulam Haider, instant private complaint was referred to this Court for conducting inquiry under section 202 Cr.P.C. Statements of CW-2 Muhammad Imran, CW-3 Muhammad Abbas were recorded by this Court who corroborated complainant’s version. In documentary evidence the complainant produced copy of FIR No. 56/2012 Mark-A, photo copy for registration of case Mark-B, copy of writ petition Mark-C, photo copy of order dated 04.09.2012 Mark-D, copy of post mortem report Mark-E.”
“This private complaint U/S 302/148/149 PPC was filed by Ghulam Haider and his statement was recorded as CW-1 in which he supported the contents of complaint. CW-2 Muhammad Imran son of Muhammad Sharif and CW-3 Muhammad Abbas son of Muhammad Mansha supported the statement of Ghulam Haider CW-1. Copy of FIR No. 56/2012 Mark-A, photo copy for registration of case Mark-B, copy of writ petition Mark-C, copy of order dated 04.09.2012 Mark-D and copy of post mortem report Mark-E further strengthened claim of complainant. In my considered opinion after going through the record all the oral as well as documentary evidence of the complainant offence under section 302/148/149 PPC are prima facie made out. Therefore, instant inquiry report is humbly submitted in the Court of Mr. Malik Muhammad Iqbal learned Additional Sessions Judge, Chunian for further course of action.”
After receipt of aforementioned inquiry report and perusing the record, learned trial Court summoned the petitioners/accused persons for facing the trial in complaint case vide impugned order dated 12.10.2015; relevant portion of said order is hereby produced:
“In the light of report of enquiry u/s 202 of Cr.P.C. and that all the PWs have fully supported the version of the complainant as stated in the complaint, so far, there is nothing on the file in rebuttal. From the preliminary evidence, present on the file and from the documents produced by the complainant prime face, it appears that case against the accused person has been made out, so, respondents be summoned as accused for 21.10.2015. Complainant is directed to submit certified copies of relevant documents for its delivery as required u/s 265-C of Cr.P.C. till adjourned date.”
3. Learned counsel for the petitioners submits that complaint was filed by Ghulam Haider (Respondent No. 1) with delay; impugned order is not a speaking order, same is against the law as well as facts of the case. He lastly prays for setting aside the impugned order.
4. Learned counsel for Respondent No. 1 submits that application regarding the occurrence was filed by Ghulam Haider (Respondent No. 1) before the police on the day of occurrence and when police did not proceed on his application, then he filed application under Section 22- A, B Cr.P.C. before learned Ex-Officio Justice of Peace, which was disposed of vide order dated 04.09.2012 (as mentioned above), however, said order was challenged by Sakhawat/petitioner No. 5 and same was set-aside by this Court vide order dated 14.01.2015 passed in Writ Petition No. 23227/2012, then Ghulam Haider (Respondent No. 1) filed Intra Court Appeal No. 235/2015, however, same was disposed of when learned counsel for Respondent No. 1 opted to withdraw the same for filing the private complaint regarding the occurrence, thereafter Ghulam Haider/ Respondent No. 1 filed the complaint, therefore, there is no unexplained delay on part of Respondent No. 1 for bringing the machinery of law into motion and filing the complaint; further submits that Respondent No. 1 has every right to file complaint in the Court regarding murder of his father and impugned order has rightly been passed by the learned trial Court.
5. Learned Additional Prosecutor General has supported the impugned order.
6. Arguments heard. Record perused.
7. So far as delay in filing the complaint is concerned, suffice it to say that there is no time period provided in the law for filing the complaint and it is common practice that the aggrieved person first approaches the police for redressal of his grievance through registration of the case, if remains dissatisfied, then files application under Section 22-A(6), Cr.P.C. before Ex-Officio Justice of Peace and sometime also invokes constitutional jurisdiction of this Court as well as of Hon’ble Supreme Court of Pakistan for registration of the case and usually complaint is filed as a last resort. Delay by itself in filing the complaint cannot be taken as fatal to reject the evidence in support thereof, which may otherwise be entitled to credence. Even otherwise, delay in filing the complaint is examined in the light of peculiar facts and circumstances of each case. Undeniably, father of Ghulam Haider (Respondent No. 1) was murdered, he tried to bring the machinery of law into motion regarding the occurrence (as detailed above) and ultimately in Intra Court Appeal No. 235/2015 (mentioned above), his learned counsel made statement before learned Division Bench of this Court that appellant (i.e. Ghulam Haider now Respondent No. 1) would like to file private complaint against the respondents and then he filed the complaint, therefore, in the peculiar facts and circumstances of the case, at this stage, delay in filing the complaint per se cannot be considered as a ground for dismissing the same, however, this aspect i.e. delay in filing the complaint would be seen by the learned trial Court after recording the evidence during trial of the case.
By now it is well settled that feeling dissatisfied by the registration of case and/or investigation conducted by the police, aggrieved person can file complaint and even against those persons, who were not nominated as accused in the first information report registered by the police regarding the same occurrence; complaint can be filed against different set of accused persons with different set of witnesses as well as with different mode of occurrence as compared to state/challan case but said difference cannot be considered as a bar for entertaining the complaint or proceeding with the same and due to said difference, complaint cannot be dismissed.
For issuance of process for the purpose of summoning the accused in the complaint, law only requires availability of “sufficient ground” as provided under Section 204 Cr.P.C. and not the “reasonable ground”. Term “sufficient ground” for “proceeding” against the accused person in complaint mentioned in Section 204 Cr.P.C. cannot be equated with term “reasonable ground” for “believing” against the accused that he has been guilty of the offence within the contemplation of Section 497 (1) Cr.P.C. and in this regard, guidance has been sought from case of “Sarwar and others versus The State and others” (2014 SCMR 1762). “Prima facie case”, does not mean a case proved beyond shadow of doubt but a case which can be established if evidence led in support of the same is believed.
At the time of summoning the accused, material available on record is not assessed in depth i.e. its relevance is seen and not the admissibility or evidentiary value, which was to be established at regular trial. In simple words, there is marked distinction as to the approach regarding appraisal of material on record i.e. averments made in the complaint and statements of complainant and witnesses recorded during preliminary inquiry for determining as to whether process to be issued against the accused or not in the complaint and at the regular hearing/trial of criminal case leading to determination of the guilt or innocence of the accused. So, when Court is satisfied with the material placed before it in the shape of complaint, documents annexed with complaint and statements of complainant and witnesses, then process can be issued for summoning the accused for facing trial. In this case, complainant filed the complaint being eye-witness of the occurrence, got recorded his cursory statement as CW-1 before learned trial Court and then said complaint was sent for inquiry under Section 202 Cr.P.C. before learned Area Magistrate, Chunian, who conducted inquiry, recorded statements of two other eye-witnesses as CW-2 and CW-3 and then submitted his inquiry report under Section 202 Cr.P.C. while clearly mentioning in the same that in his considered opinion after going through the record, all the oral as well as documentary evidence of the complainant, offences under Sections: 302, 148, 149 PPC are made out. Hence, in the light of cursory statements of CWs including the complainant as well as documents produced by the complainant including postmortem report and aforementioned inquiry report, sufficient ground was available on record for proceeding, therefore, learned trial Court rightly found that case against the accused persons has been prima-facie made out and summoned them for facing the trial.
Needless to add that during trial of the case, accused persons would have every opportunity for cross-examining the complainant and other witnesses, bringing their oral as well as documentary version on the record and to falsify the allegations mentioned in the complaint, they would have also opportunity to produce evidence in their defence as well as themselves appear as their own witness under Section 340(2) Cr.P.C. for disproving the allegations levelled against them.
8. In view of what has been discussed above, it has been noticed that in the peculiar “facts and circumstances” of the case, impugned order has been passed while keeping in view the settled principles of law on the subject as well as facts of the case and no illegality has been found in the same, therefore, needs no interference. Resultantly, instant revision petition is without merits and is hereby dismissed.
(A.A.K.) Revision dismissed
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