' This criminal revision is directed against the order dated 7-3-2005 passed by the learned Additional Sessions Judge, Muzaffargarh, whereby he dismissed the private complaint filed by the petitioner against respondents Nos.2 to 5 under sections 302/148/149, P.P.C. Within the limits of Police Station Rohillanwali District Muzaffargarh.
2. Brief facts of the instant case are that Habib Ullah petitioner got a case registered against respondents Nos.2 to 5 vide F.I.R. No,572 of 2002 dated 25-11-2002 under sections 302/148/149, P.P.C.
At Police Station Rohillanwali, District Muzaffargarh regarding the murder of his wife Mst. Bhirawan alleging therein that on the night of 24/25th of November, 2002 in the night on hearing the report of firing the complainant along with his son. Muhammad Naeem woke up and in the bulb light saw Barkat Ali armed with .12 bore gun standing in the compound of the cattle-shed of complainant, whereas an unknown person was standing outside the house. The complainant along with his son under fear went up on the roof of cattle-shed and saw that Imam Bakhsh armed with rifle while Muhammad Bakhsh and Ghulam Qadir both armed with pistols and Barkat Ali dragged out wife of complainant namely Mst. Bhirawan to cattle-shed and inquired about her husband-complainant, she showed her ignorance. All the accused became inflamed and Imam Bakhsh raised Lalkara to commit murder of Mst. Bhirawan, whereupon Ghulam Qadir opened two pistol fires out of which one landed on her head and the other on her abdomen and she fell down. Then Muhammad Bakhsh opened fire which hit on the right buttock of Mst. Bhirawan. Meanwhile Shaukat Ali P.W.
Came there and the accused persons fled away towards west and Mst. Bhirawan succumbed to the injuries. When the complainant checked Rs,23, 700, and 3-1/2 Tolas gold ornaments were found missing from the house. The motive behind the occurrence was that accused persons intended to capture possession of land of complainant. During the investigation of case the accused persons were declared innocent and the complainant was found involved in the offence and challaned.
Subsequently, he was acquitted of the charge after facing trial. The petitioner after being released from jail filed a private complaint reiterating the same story as he had put forth in case F.I.R. No,572 of 2002, mentioned above wherein cursory statement of complainant was recorded by the learned Additional Sessions Judge, Muzaffargarh and the case was sent for report to the learned Illaqa Magistrate under section 202, Cr.P.C. Accordingly the learned Illaqa Magistrate submitted his report after holding an inquiry dated 27-10-2004 in the Court of learned Additional Sessions Judge which is as under:-- "The statements of enquiry witnesses prima facie show that offence under sections 302/148/149, P.P.C. Is made out."
' The learned Additional Sessions Judge, Muzaffargarh vide impugned order, dated 7-3-2005 dismissed the complaint filed by the petitioner hence, this criminal revision.
3. Learned counsel for the petitioner submits that the impugned order is against the law and facts of the case and the same has been passed in a slipshod manner without application of independent mind and is based upon surmises and conjectures. That F.I.R. Was lodged on the statement of petitioner and P. Ws. Also supported the petitioner's version, that medical evidence also corroborated the F.I.R. Without contradiction so, material on record is sufficient to connect prima facie the accused/respondents with the commission of offence, therefore, the impugned order is liable to be set aside. That it has been enunciated by the superior Courts that cases should be decided on merit. Further submits there is sufficient grounds for proceeding against accused/respondents who stand involved in this complaint with allegation of murder of Mst.
Bhirawan wife of the petitioner/complainant so, learned trial Court has made a glaring mistake by dismissing the complaint and the impugned order is liable to be set aside. Learned counsel for the petitioner has relied on Muhammad Akram v. The State and others 1999 PCr.LJ 1725; Mushtaq Ahmad v. Muhammad Saleem and others 1995 PCr.LJ 1900 and Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317.
4. On the other hand learned counsel appearing on behalf of learned Advocate-General has vehemently opposed the stance taken by learned counsel for the petitioner and submits that the learned trial Court has passed well-reasoned order wherein no interference is called for.
5. I have heard learned counsel for the parties and perused the record. Wife of petitioner namely Mst. Bhirawan was murdered upon which case F.I.R. No,572 of 2002 was got registered on the complaint of petitioner but during investigation the accused persons were declared innocent and petitioner/complainant was challaned and after his acquittal and release from jail he filed private complaint against the accused/ respondents which was dismissed by the learned trial Court after cursory statement of complainant/petitioner as well as inquiry by the learned Judicial Magistrate.
The learned Judicial Magistrate observed in his report that after careful examination of statement of inquiry witnesses, it was evident that complainant and inquiry witnesses had recognized accused persons in the bulb light. The learned Judicial Magistrate held that in view of statement of witnesses examined by him during enquiry prima facie offence under sections 302/148/149, P.P.C.
Was made out against the respondent.
6. The purpose of inquiry under section 202, Cr.P.C. Is to see whether there is sufficient material to put a person complained against to trial or not. Section 202, Cr.P.C. Itself negates the assertion that each and every complaint irrespective of the merits must be got inquired into until the Court concerned thinks it fit and proper. Such is not the object of section 203, Cr.P.C. That in every case an inquiry must be held. Sections 202 and 203, Cr.P.C. Are reproduced below:-- "Section 202 Postponement for issue of process.--- (1) Any Court, on receipt of a complaint of offence of which it is authorised to take cognizance, or which has been sent to it under section 190, subsection (3), or transferred to it under section 191 or section 192, may if it thinks fit, for reason to be recorded, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made 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.
'Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200.
(2) A Court of Session may, instead of directing an investigation under the provisions of subsection (1). Direct the investigation to be made by any Magistrate or Justice pf Peace subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint.
(3) If any inquiry or investigation under this section is made by a person not being a Magistrate or Justice of Peace or a Police Officer such person shall exercise all the powers conferred by this Code on an Officer-in-Charge of a Police Station, except that he shall not have power to arrest without warrant.
(4) Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witness on oath."
"Section 203. Dismissal of complaints.---The Court before whom a complaint is made or to whom it has been transferred, 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. "
7. The propriety of order passed by the learned Additional Sessions Judge has been challenged by way of criminal revision with the prayer that impugned order dated 7-3-2005 be set aside and trial Court be directed to summon the respondents/accused in criminal complaint titled Habib Ullah v.
Barkat Ali. As a rule of prudence, revision Court cannot lightly discard estimate of evidence by the Court of first instance (Sessions Court) unless it is found palpably erroneous. Learned Additional Sessions Judge is not bound to accept the report of Inquiry Magistrate. It is settled law that dismissal of complaint on the report of inquiry under section 202, Cr.P.C. Has to be taken into consideration and not else and the scope of inquiry under section 202, Cr.P.C. Is related to finding out the truth or otherwise in complaint in order to determine whether process should be issued or not and section 203, Cr.P.C. Lays down that material is to be considered for the purpose. Therefore, the learned Additional Sessions Judge while disagreeing with the report observed by the learned Magistrate was not bound to act mechanically rather to apply judicious mind before the process is issued. Reliance can be placed upon Vedilal Panchal v. Datta Traya Dulaji Ghadigaonkar and another AIR 1960 SC 1113; Pramatha Nath Talukdar and others v. Saroj Ranjan Sarkar AIR 1962 SC 876; Ali Khan v. Lal Khan and others 1984 PCr.LJ 318 and Muhammad Shafi v. Khushi Muhammad 1982 PCr.LJ 498.
8. In this view of the matter the instant criminal revision fails and the same is dismissed in limine.