1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- This criminal revision application is directed against the Order, dated 8-12-2004 whereby the learned Vth Additional Sessions Judge, Hyderabad has dismissed the direct complaint filed by the applicant.
2. ' The admitted fact is that there is enmity between the parties. The applicant attempted to lodge F.I.R. Against the five persons who are not party in this application. He could not succeed. He thereafter, approached ex officio Justice of Peace under section 22-A, Cr.P.C. And direction was issued for recording the F.I.R. F.I.R. Being Crime No, 39 of 2003 was registered at Police Station Oderolal. The police conducted investigation and disposed of the case in B-class. Action was recommended under sections 182 and 211, P.P. C. Against the applicant. The complainant thereafter, filed a direct complaint alleging that the accused persons (who have not been joined as party in the present revision application) came at the land of complainant and suddenly started firing with the gun upon the complainant party. The five accused persons fired but no injury was sustained by any person. It was further alleged that the culprits went towards the boring machine and burnt the same. It was alleged that the five culprits were identified in the light of fire. The culprits then made their escape good towards the bank of river. The P.Ws. Muhammad Rahim and Abdul Karim, a relative and brother of the complainant were examined during the preliminary enquiry under section 202, Cr.P.C. The learned trial Court dismissed the direct complaint with the observation that no independent witness was produced and the witnesses have deposed in stereo typed manner.
3. He further observed that no prima facie case was made out and the complaint was the result of dispute between the parties over the landed property in respect of which civil suit was already pending.
4. ' The learned counsel for the applicant has submitted that incident took place at the odd hours of night and therefore, it was not possible to procure the independent witnesses. I have asked the learned counsel if any mechanic to whom the boring machine must have been shown was examined to testify about the damage caused to the boring machine to which he has replied in negative. The learned counsel contended that the Mashirnama prepared by the police during the investigation contained the fact that the boring machine was set at fire. However, he has conceded that no application was submitted for calling the Mashirnama during the preliminary enquiry. The learned counsel has further submitted that the statement of the witnesses in preliminary enquiry has gone unchallenged as no cross-examination was conducted and, therefore, the trial Court ought to have accepted the same. The learned counsel has placed reliance on the judgment of Honourable Supreme Court in the case of Ms. Zeba Bakhtiar v. Arshad Sami Khan and 5 others 1998 SCM R 922. He has placed reliance on the observation that where on the basis of record a prima facie case is made out the direct complaint should not be dismissed. He has further placed reliance on the observation that at the stage of preliminary enquiry only one sided unchallenged version of the complainant is examined, as neither the accused is present in the Court nor are the witnesses subjected to cross-examination. I find that in the same judgment the Honourable Supreme Court has observed that the object behind section 202, Cr.P.C. Is to ensure satisfaction of the Court about the prima facie case having been made out against the accused before he is called upon to answer a criminal charge. It is further observed that Court is duty bound to exercise discretion in issuing the process to the accused named in the complaint with great care and caution. Unless evidence produced before the Court is such that if unrebutted conviction may be based thereon. Court would be justified to decline issue of process to the person complained against. Judging the present case on the yardstick of the criteria laid down by the Honourable Supreme Court, I find that the complainant failed to bring sufficient material on record to make out a prima facie case for issuance of process against the accused persons named in the complaint.
5. ' I would like to advert to another aspect also. In this revision application the accused persons have not been joined as party and the State has been joined as party which has nothing to do with the direct A complaint. So far the State is concerned the case has already been disposed of as B-class.
6. Mr. Durrani in this behalf has placed reliance on a Single Bench judgment of this Court in the case of Ahmed v. The State 2004 PCr.LJ 304, wherein it has been held as follows:-- "Proviso to section 436, Cr.P.C. Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless said person has/had an opportunity for showing cause why such direction should not be made. From the perusal of the proviso to section 436, Cr.P.C. It appears that notice is mandatory when the order of discharge is sought to be set aside but same is not attracted where direct complaint has been dismissed without issuing process to accused persons.
7. ' The accused person at the preliminary stage of inquiry has no locus standi to participate in the proceedings and as such if the proceedings have been terminated by way of dismissal of the direct complaint the presence of the accused persons in the revision application are not necessary.
8. ' In view of the above I am of the view that the accused, persons are not necessary party to be joined as respondent in the cases where process has not been issued to the said accused persons pursuant to the direct complaint."
9. ' With due deference to my learned brother, I am not persuaded to agree with the view, for the simple reason that a person against whom any order is to be passed must be party to the proceedings. The reason that the accused persons having no locus standi to participate in the proceedings, therefore, they are not necessary party is violative of the provisions contained in the Cr.P.C. If same logic is accepted then it can be said that the accused persons have no locus standi to appear and contest the matter at preliminary enquiry, therefore, at that stage they are not necessary party. The question is not whether a party has locus standi to appear at a particular stage or not, but the question is whether the Court can exercise the jurisdiction against the person who is 'not party to the proceedings. No process is to be issued against the stranger and the person against whom any process is ordered to be issued must be party before the Court.
10. ' For the foregoing reasons, I do not find any substance in the revision application which stands dismissed accordingly.
11. Revision dismissed. <