This Criminal Revision has been filed by petitioner Haji Kamal Khan to challenge an order/judgment of the Additional District and Sessions Judge, Quetta whereby respondents Muhammad Naeem, Muhammad Ghiyas, Ghulam Muhammad and Ali Jan were discharged in a complaint case instituted against them by petitioner Haji Kamal Khan under sections 465, 466, 469, 471 and 474, P.
P. C. I have heard Mr. Muftakhairuddin, Advocate for the petitioner Haji Kamal Khan (hereinafter referred to as complainant), Mr. S. H. Jafri, Advocate for respondents Muhammad Naeem and three others (hereinafter referred to as accused). I have also heard Mr. Muhammad Ahmed Mirza, the Advocate-General whom I had requested to appear and assist the Court as some important points of law bad arisen.
2. The brief facts of the case .Are that complainant Haji Kamal Khan filed a complaint under sections of law mentioned in the foregoing paragraph against the four accused in the Court of Sessions Judge, Quetta on 24th July 1976. The Court of Session forwarded the complaint to the Extra Assistant Commissioner II and First Class Magistrate, Quetta for enquiry and report. The Magistrate scrutinized the complaint and examined the witnesses produced before him by the complainant and he recorded satisfaction that the case disclosed commission of offences triable by the Court of Session. The complaint was then sent to the Sessions Judge, Quetta who issued process against the accused. This case was subsequently transferred to the Additional Sessions Judge at Quetta, who called upon the complainant to submit the statement of allegations and the list of witnesses and documents in support of the same. The Additional Sessions Judge without framing a charge passed an order discharging the accused persons.
3. The facts in the complaint disclose that the accused had forged a power of attorney in order to support a claim in a suit that was pending before the civil Court. The witnesses had made statements in support of the case but for the reason of the order that I propose to pass I do not wish to discuss that evidence. The Additional Sessions Judge in his judgment has recorded that since no documents had been placed on record to establish forgery and that from the appearance from the accused persons he came to believe such illiterate persons could. Not have committed such offences, and these were the two reasons upon which the Additional Sessions Judge had sustained the order of discharge.
4. Mr. Muftakbairuddin, Advocate had made a grievance that the procedure adopted by the Additional Sessions Judge was contrary to law and had resulted in miscarriage of justice. His further grievance is that the Additional Sessions Judge was in error in not allowing the complainant to produce his witnesses and such error had occasioned perverse findings which were not sustainable on the facts on record.
5. I have mainly heard the learned Advocates in regard to the procedure that was adopted by the Sessions Court and the Magistrate. The pint that arose in this case assumed importance because it would touch a vast number of identical cases that may be pending or may be instituted hereinafter. For such reasons I would wish to state the law dealing with procedure to be adopted in cases in3tituted on complaints and triable exclusively by the Court of Session.
6. The Code of Criminal Procedure was amended in 1972, in 1973, in 1975 and again in 1976. The procedure relating to trial of Sessions cases before the Law Reforms Ordinance, 1912 was that all complaints were instituted in the Court of the Magistrate having jurisdiction who after recording the statement of the complainant under section 200, Cr. P. C. Either issued process under section 204, Cr. P. C. Or held preliminary enquiry under section 202, Cr. P. C. Such preliminary enquiry could be held by Magistrate himself or through any other agency like the police. After the preliminary enquiry was concluded the Magistrate could either issue process under section 204, Cr. P. C. Or dismiss the complaint under section 203, Cr. P. C. After the process was issued and accused appeared the Magistrate had to examine the evidence produced by the complainant with a view to finding out if a satisfactory case for committal was made out and if such a case was made out he would send the case to the Court of Session for trial. Under the law as it stands at present all complaints have to be instituted before the Magistrate having territorial jurisdiction and on such complaint being instituted the Magistrate took cognizance under subsection (1) of section 190, Cr. P.
C. And if the offences complained of were exclusively triable by the Court of Session, the Magistrate, without recording any evidence, has to send the case to the Court of Session for trial. This would mean that if a complaint is made in regard to a case triable by the Court of Session the Magistrate could neither hold a preliminary enquiry nor issue process but he has simply to send the same to the trial Court viz. Court of Session. On the other hand subsection (1) of section 193, Cr. P. C. Lays down that except when the Code or any other law provided otherwise, the Court of Session shall take cognizance of offence only in such cases which have been sent to it under subsection (3) of section 190, Cr. P. C. Reading these two provisions together it is indeed plain that in cases which are triable by the Court of Session (unless the Code or any other law provides otherwise) the complaint has to be submitted before the Magistrate who takes cognizance under subsection (1) of section 190, Cr. P. C. And after doing so he has to send the case to the Court of Session, which Court would again take cognizance. No doubt the two provisions state that both the Magistrate as well as the Sessions Court have to take cognizance o case, but as it is, the word "cognizance" is a term of art which in the present context implies the application of mind by a Court to the fact, of a case in order to determine whether the facts disclose or indicate the commission of offence triable by the Court of Session. Moreover the is no violation to any Scheme of the Code if both the Magistrate as well as the Court of Session have to take cognizance. I only wish to stress that the word "cognizance" as used in subsection (3) of section 190, Cr. P. C. Or subsection (1) of section 193, Cr. P.
C. Does not mean that the case was fit for issuance of process or trial. The other aspect which is patent on a reading of subsection (1) of section 193, Cr. P. C. Is that a Court of Session is not a Court of original Jurisdiction but could be seized o a case only when the case is sent by the Magistrate to the Court of Session.
7. The next question that deserves consideration is whether a Magistrate has nothing to do in relation to the complaint before sending the same to the Court of Session. No doubt subsection (3) of section 190, Cr. P. C. Postulates the sending of a complaint to the Court of Session, without recording any evidence. However section 200 of the Code provides the Magistrate taking cognizance, which is referred to under section 190 Cr. P. C. Shall at once examine the complainant upon oath and reduce the substance of such examination to writing. This provision in regard to recording of statement of complainant is however subject to three rid which are stated in the provisos. The first proviso states that if complaint is made in writing, nothing would require a Magistrate to examine the complainant before sending it to the Court of Session. It would see that generally a Magistrate would be bound to record the statement of complainant under section 200, Cr. P. C. But he would not be bound t record such statement if the case was triable exclusively by the Court of Session. It would be of benefit to re-concile the proviso with the main section so that each obtains its significance and true import. The more, words "nothing herein contained shall be deemed to require the Magistrate to examine the complainant" do not appear to mean that a Magistrate would be acting illegally or in excess of his jurisdiction if be were to examine the complainant. These words simply mean that a Magistrate would not be bound to record the statement. However in suitable cases the Magistrate has ample power to record the statement under section 200 Cr. P. C. One situation is plain even on a reading of the proviso itself and that is when a complaint is not made in writing. In such a case the Magistrate must as of necessity record the statement of the complainant because if he did not do so what would he send to the Court of Session. There may be other cases where the Magistrate may, and indeed should, record the statement of the complainant in order to determine an offence is at all indicated; and, if it is indicated, is it triable by the Court of Session. In such circumstances the least that could be said is that the Magistrate has the power to record the statement under section 200, Cr. P. C. Before sending the case to the Court of Session under subsection (3A of section 190, Cr. P. C.
8. After the Sessions Court receives the complaint, a procedure in that regard is stated in the Code itself. On receipt of a complaint a Court of Session is not bound to issue process or frame a charge.
Subsection (1) of section 202, Cr. P. C. Provides for all Courts, including Court of Session to which a complaint is sent under subsection (3) of section 190Cr. P. C. To postpone issue of process and enquire into the case or direct any enquiry or investigation by the Police Officer or any other person.
Under subsection (2) of section 202 the Sessions Court may in addition to holding enquiry itself or through a police officer direct an investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint. It would thus seem that the Sessions Court on receiving the complaint sent to it under subsection (3) of section 190, Cr. P. C.
CAN EITHER issue process, or hold any enquiry itself, or direct an enquiry or investigation to be made by the police officer, or any other person, and could even direct investigation to be made by the subordinate Magistrate. Such enquiry or investigation is provided by the Code for the purpose of enabling the Court of Session to ascertain the truth or falsehood of the complaint. The subordinate functioneries namely the police officer or the Magistrate or any other persons will, on such order of the Sessions Court, record the statement of witnesses and submit a report to the Court of Session even with their own views about the statements recorded by them. It is thus plain that a Sessions Court has the power of holding or causing to be held an enquiry, preliminary to issuance of process or framing of the charge. After such enquiries are held 'the Sessions Court could dismiss a complaint or issue process' in its discretion. After a charge is framed the case proceeds in accordance with the provisions of sections 265-A to 265-N contained in Chapter XXII- A of the Criminal Procedure Code.
9. Having stated the procedure I now propose to examine the procedure that has been adopted in this case The complaint was directly filed in the Court of Session when it should in fact have been filed before the Magistrate. The question is whether proceedings stand vitiated on such account.
The question that in the present case is to be determined in the light of. The facts is that even the Magistrate had to send the case to the Court. Of Session after or before recording- the statement under section 200, Cr. P. C.. If the proper procedure had been followed result would still have been the same. On the other hand section 201, Cr. P. C. Recognizes at least in principle the power of a Court, not competent to take cognizance, to return a complaint for presentation to the proper Court. Although section 201, Cr. P. C. Provides that only Magistrate can exercise the power to return the complaint for proper presentation, still such dower would be inherent in any Court. To state a simple case, in an illiterate complainant chose to walk up to the Registrar of the High Court, and file a complaint the .Latter without formally resorting to the provisions of section 201, Cr. P C. Would return the complaint to the person presenting it either with an expressed advice to file it before the proper Court or at least an implied direction that he should file it in some other Court because the High Court had no jurisdiction. In such a case that person would go to file a complaint before the Court that would have the power to deal with a case. Even in the present case the Session Judge could have returned the complaint to the complainant telling hi that he should file it before the Magistrate and thereafter also the Magistrate would have sent it to the same Sessions Court. The recording o statement under section 200, Cr. P. C. Not being a mandatory provision in relation to cases triable by the Court of Session no prejudice could or has been caused in the present case. I should not be misunderstood to mean that the procedure adopted in this case was proper or in strict conformity with the law, but all the same I have no hesitation in saying that no prejudice having been caused, the proceedings in the case have not been vitiated by that reason alone. In regard to the rest of proceedings, the order of the Sessions Court directing Extra Assistant Commissioner and First Class Magistrate to hold a preliminary enquiry is perfectly in consonance with the Scheme of section 212, Cr. P. C. An enquiry could have been ordered and in fact has been held.
10. I now come to the last question in regard to relief. The order of the Additional Sessions Judge proceeds on two-fold reasons: firstly that the forged documents were not produced and secondly that the accused persons by their very appearance could not have committed this offence. In regard to second reason the less said the better. The cases are not decided by the appearance of accused persons but on the merits of the evidence produced. To make an ad hoc and sweeping statement that an innocent complexion is a bar against the prosecution would be more than absurd. No doubt there may be cases when appearance of the accused person may indicate his capability to commit the offence, but such cases are rare and such situation bears the least parallel to the case in hand. I have not at all been impressed by this reason advanced by the Additional Sessions Judge and would enter a caution that he shall not take into consideration the appearance of the accused while deciding a case, unless that become necessary by reason of evidence pointing in such direction. Coming to the next reason that the documents had not been produced, it cannot be overlooked that the document in the case was either in possession of the accused or had been placed on the record of the case. In either case such document could not be in possession of the complainant and the mere fact of non-production of the original documents could not have defeated the prosecution. It was possible that the complainant might have given an explanation in regard to the existence of these documents. Even this reason has not impressed me. Mr. S. H. Jafri, Advocate has attempted to argue this matter from the point of credibility of witnesses. He could urge this argument before the Additional Sessions Judge, Quetta.
In the result I set aside the order whereby the accused were discharged in this case and remit the case to the Additional Sessions Judge for hearing it afresh after giving notices to both the parties.
The Additional Sessions Judge has termed the order of discharge as a judgment but to such extent he has only used a wrong term. The order must be termed as one of discharge.