' Relevant facts are; the petitioner filed a complaint before Judicial Magistrate, Sanghar under sections 427, 504 and 506, P.P.C. Read with section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 against respondents Ns.2 to 8. This complaint was forwarded by the learned Magistrate to the learned Sessions Judge, Sanghar as offence under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was exclusively triable by the said learned Court. The learned Additional Sessions Judge, Sanghar to whom the complaint was entrusted by the learned Sessions Judge proceeded to record the statement of the complainant under section 200, Cr.P.C. And then sent the complaint back to learned Judicial Magistrate, Sanghar for further inquiry.
2. It appears that the learned Judicial Magistrate, Sanghar conducted some proceeding in the complaint case. Ultimately the matter was placed before the learned Additional Sessions Judge, Sanghar who passed an order on 24-4-2000 (wrongly typed as 24-2-2000 in the certified copy annexed with this revision petition) directing the respondents to appear before him and "assign reasons" as to why the complaint should not be brought on record and registered against them.
Respondents entered appearance and filed their objections in writing. Ultimately vide impugned order, dated 26-6-2000 the complaint was dismissed. Hence this revision petition.
3. I have heard the learned counsel for the parties and perused the record.
4. It was contended by the learned counsel for the petitioner that the procedure adopted by the learned Additional Sessions Judge in inviting objections from the accused was not justified by law.
It was submitted that the accused persons, unless formally charged could not be permitted to participate in the proceedings of the complaint case. Learned counsel placed reliance on judgment of this Court delivered in Mst. Fatima Bibi's case 1988 PCr.LJ 864 wherein it was laid down that the accused person does not come into the picture unless process is issued to him to face trial. It was submitted that patent illegality was committed by the learned trial Court rendering the impugned order liable to be set aside.
' On the other hand the learned counsel appearing for the respondents-accused tried to support the impugned order by taking up the plea that since no material prejudice was caused to the complainant by the procedure adopted by the learned Additional Sessions Judge, therefore, his direction for issuance of notice to the accused to file their objections qua the complaint was a mere irregularity which could 'not be termed so grave so as to vitiate the impugned order.
5. I find' merit in this revision petition.
' Perusal of section 190, Cr.P.C. Particularly subsection (2) thereof would lead to the inference that while taking cognizance of an offence a Magistrate, if he is not competent to try the offence, is obliged to send the file to the learned Sessions Judge, section 202, Cr.P.C. C empowers the learned Court of Session to postpone the issuance of process, and he can either himself inquire into the' case or direct an inquiry or investigation by the person or persons nominated by him for this purpose so as to form a prima facie view about the truth or falsehood of the complaint.
' Section 202, Cr.P.C. Reads asunder:- "Section 202 Postponement of issue of process.--- (1) Any Court, on receipt of a complaint of an 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 or inquiry of 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: ' 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 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 witnesses on oath."
6. It is clear from the plain, reading of section 202, Cr.P.C. That till such time the learned trial Court (Additional Sessions Judge in this case), was satisfied with the result of the inquiry conducted by the learned Judicial Magistrate, he could not have summoned the respondents to appear before him in any capacity whatsoever. It was wholly illegal on his part to call upon the respondents during the course of inquiry under section 202, Cr.P.C. To join the proceedings so as to provide them an opportunity to raise objections qua the complaint, in which they were arrayed as accused.
Reference may be made to Riaz Ahmad's case 1995 PCr.LJ 14 in which, a learned Judge of Lahore High Court, while interpreting section .202, Cr.P.C. Has laid down that accused was not entitled to claim his association in preliminary inquiry conducted under section 202, Cr.P.C. As he had no locus standi to put his version during preliminary inquiry before issuance of summons (to him).
7. In my view the mode of disposal of the case adopted by the learned Sessions Judge amounted to mini trial which is not contemplated/permitted by law. In case the course of action adopted by the learned Sessions Judge is endorsed/upheld it would amount to grant of permission to learned trial Court to pre-Judge the case even before issuance of the process to the accused so as to charge them with a particular offences, trial whereof was yet to be faced by them.
8. Judged from whatever angle, the impugned order is not sustainable in law. It could not be termed to be a mere illegality curable F under section 537, Cr.P.C.
' Consequently, the revision petition is accepted and the impugned order is set aside with the result that the complaint filed by the petitioner before the learned trial Court against the respondents shall be deemed to G be pending. Since the learned trial Judge has already held an inquiry under section 202, Cr.P.C. He shall take note of the same and after excluding from consideration the objections filed by the private respondents pass a speaking order as to whether or not the respondents were to be summoned as accused or not.
' Since the complaint was filed more than four years back it is directed that trial thereof shall be concluded within a period of four months, positively, with a report to the Incharge, Branch Registry Federal Shariat Court, Karachi.