The petitioners through this revision petition under Section 439 readwith Section 435 Cr.P.C. have challenged the order dated 25.1.2003 passed by the learned Addl. Sessions Judge, Okara through which they have been summoned to face the trial in a private complaint filed by Respondent No, 1 against them under Section 302 PPC.
2. The brief facts of the case are that case FIR No, 274 dated 29.5.2002 was registered on the statement of Zulfiqar Ali in which he has stated that on the night between 28/29.5.2002 he alongwith Muhammad Tufail was proceeding from Abdullah Sugar Mills to Kot Tibba Dakhli, when all of a sudden two unknown persons armed with fire-arms who had concealed themselves in the maize crop came out and on the pointation of the weapons they snatched the Motorcycle from them. The complainant and Muhammad Tufail PW tried to restrain them from doing so. One of the dacoits who was armed with carbine fired at them which missed. In the meanwhile on the hue and cry the residents of Kot Tibba Jafar Ali, Muhammad Ramzan, Abdur Rehman, Shaukat Ali, Haji Qasim Ali, Abdul Ghafoor, Manzoor and others came at the spot while armed with dandas and sotas. Both the dacoits after snatching the Motorcycle had proceeded towards Sher Garh. They were chased and on hearing hue and cry the persons of the localities also came out. After struggle they were apprehended and the people who were armed with dandas and sotas and bricks caused them injuries and they had fallen at the metalled road. Mian Khurrum Jehangir, Tehsil Nazim Depalpur was contacted who further informed the police and the dacoits were identified as Imam and Munir Ahmad. The .12 bore carbine of Imam was also taken into possession and pistol .30 bore was thrown by Munir Ahmad in the nearby fields.
3. During investigation Nazir Ahmad father of one of the deceased Munir Ahmad moved an application to the police and SSP District Okara etc. that his son Munir Ahmad had been murdered by the petitioners and false case has been registered under the abovesaid provisions at the instance of Zulfiqar petitioner. As the police did not investigate the case properly and being aggrieved he filed Writ Petition No, 11190 of 2002 in which direction was issued to record the version of the petitioner in the FIR already got recorded at Police Station Hujra Shah Maqeem vide order dated 26.6.2002. Then being not satisfied with the conduct of the police he filed a private complaint against the petitioners which was sent to the learned Addl. Sessions Judge who referred the matter for holding of inquiry to a Magistrate under Section 202 Cr.P.C. The report was submitted and after the perusal of the same the impugned order has been passed which is being assailed through this revision petition.
4. Learned counsel for the petitioners contends that under Section 202(2) Cr.P.C. Court of Sessions may, instead of directing an investigation under the provisions of sub-section (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. It is also contended that due to the amendment the word "inquiry" has been deleted and the word "investigation" has been inserted in the said provision and the inquiry which has been conducted by the learned Magistrate was illegal and unlawful. It is also contended that this Court in a case reported as Muhammad Ibrahim and others vs. Qudrat Ullah Ruddy and others (PLD 1986 Lah. 256), 'has held that the inquiry under Section 202(2) Cr.P.C. cannot conducted and for that purpose the investigation has to be conducted and in the investigation both the parties have to be joined and only then the investigation can be finalized and the accused will also be afforded as an opportunity to cross-examine the witness before the Investigating Officer and the I.O. shall also take into consideration the previous investigation if has been conducted, hence relying upon this case learned counsel contends that the procedure has not been correctly adopted by the learned Addl. Sessions Judge and the inquiry report which has been relied upon was illegal and the order may be set aside. It is lastly contended that the result of the investigation was also not considered by the learned Addl. Sessions Judge and the order has been passed in a slipshod manner without applying judicial mind and the same may be set aside.
5. Learned counsel for the State on the other hand opposes this petition on the ground that the accused can be summoned in a private complaint on the basis of the inquiry report and is support of his contentions relies upon Riaz Ahmad vs. The Addl. Sessions Judge, Gujrat and another (1995 P.Cr.L.J. 14) and Mazhar Abbas vs. The State and another (2004 P.Cr.L.J. 1144).
6. I have heard the arguments of the learned counsel for the parties and also perused the documents attached with this petition. It is an admitted fact that the private complaint was filed by Respondent No, 1 in which he has alleged that his son Munir Ahmad and one Imam had been murdered by the petitioners and false case was got registered in order to save the skin of actual culprits. He being not satisfied with the investigation conducted by the local police in a case registered at the instance of the petitioner. Zulfiqar had filed the private complaint narrating different version for summoning the accused to face the trial under Sections 302/364/148/149/109 PPC before the' learned Ilaqa Magistrate which was sent under Section 190(2) Cr.P.C. to the learned Sessions Court for further proceedings Section 202(1) Cr.P.C. provides that "if the said Court thinks fit, for reasons to be recorded postpbne 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 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." Sub-section
(2) thereof further lays down that "a Court of Sessions may, instead of directing an investigation under the provisions of sub-section (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." The learned Addl. Sessions Judge, Okara seized of the private complaint had recorded the statement of the complainant/Respondent No, 1 and further referred the matter to the learned Magistrate for inquiry, who recorded the preliminary evidence of two witnesses namely Ahmad Ali and Nazir Ahmad son of Muhammad Ali.
Respondent No, 1 also tendered in evidence private complaint (Ex. PA) and post-mortem reports of both the deceased (Ex. PB and Ex. PC). Then the report dated 22.1.2003 (the report of inquiry) was submitted by the learned Magistrate and thereafter vide order dated 25.1.2003 the learned Addl.
Sessions Judge, Okara has issued process against the petitioner/accused to face the trial. The main contention of the learned counsel for the petitioner is that the matter was referred to the Magistrate under Section 202(2) Cr.P.C. wherein word "investigation" has been used and the learned Magistrate should have joined the other party to produce their defence and only thereafter any order for summoning the accused/petitioners could be passed, but they having not been joined in the said investigation the impugned order is illegal. The learned counsel has placed reliance on "PLD 1986 Lah. 256" wherein this Court had distinguished the "inquiry" from "investigation" that the inquiry is to find out the truth wherein the accused cannot be afforded an opportunity of hearing or cross-examine the witness but in the investigation the accused will be afforded an opportunity of hearing before the police officer of a Magistrate and both the versions will be taken into consideration by the Investigating Officer and due to this reason this word "investigation" has been maintained and word "inquiry" has been delected. However, I am not in agreement with due respect with this view as the word "investigation" has been defined in Section 4(a) of Criminal Procedure Code which is reproduced as under: "Inve stigation", Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf."
According to the above provision of law the purpose of the "investigation" is to collect the evidence but it is not provided that the accused will be joined and their version will be taken into consideration during the investigation as well. Hence I with great respect distinguish with the observations made by this Court in "PLD 1986 Lah. 256" (supra). The purpose of the investigation has been defined in the Criminal Procedure Code and it is immaterial whether the "inquiry" or the "investigation" should be made under Section 202 Cr.P.C. as both the words have been used in Sub- section (1) of Section 202 Cr.P.C. according to which the Court by itself can inquire into the matter or refer the matter to the Justice of Peace or any police officer or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint. It has been held by this Court in "2004 P.Cr.L.J. 1144" and "1995 P.Cr.L.J. 14" (supra), that on the basis of the inquiry report the accused can be summoned. I am further fortified by the judgment reported as Mst. Fatima Bibi vs. Muhammad Jamil and 4 others (1988 P.Cr.L.J. 864) in which a private complaint was filed and the learned Magistrate under Section 202, Cr.P.C. had been referred the matter who then submitted his report. It was held by this Court that the purpose of the said scrutiny is to scrutinize carefully the allegations made in complaint with a view to prevent a person named therein as accused being called upon to face an absolutely frivolous complaint and Magistrate would also find out what material there was to support allegations made in complaint. It was further held that the accused person, cannot be permitted to interfere during inquiry which was held for purpose of ascertaining truth or falsehood of a complaint. Provisions of Section 202 Cr.P.C. did not call for a regular trial, at that stage of accused who could legally be called upon to answer accusation only when a process issued and he was put on trial. It was also that the evidence adduced during investigation arising out of First Information Report all such matters were extraneous to proceedings under Section 202 Cr.P.C. It has also been held in the case reported as "PLD 1985 S.C. 62", "2000 SCMR 1904", "PLD 1986 Criminal Cases 316" and "PLD 1988 FSC 41" that at the time of summoning of an accused in a private complaint to face the trial only on the basis of the evidence recorded at the preliminary stage it has to be seen by the trial Court that whether prima facie case has been made out for summoning the accused to face the trial on the basis of accusation made in a complaint, but the stand of the accused and the result of the investigation is extraneous considerations which can only be taken during trial by the trial Court.
7. On merits I have considered that two versions regarding the same occurrence one in the FIR that the two persons while armed with fire-arms had snatched Motorcycle from Zulfiqar Ali Petitioner No, 1, who were chased by the mob and caused injuries resulting into their death while the second in the private complaint that the accused nominated therein had committed intentional murder of the said deceased. Three witnesses have appeared in support of the private complaint, who have given eye-witness account of the occurrence. The learned Magistrate had reported that the petitioners were prima facie involved in this case and the learned Addl. Sessions Judge through the impugned order having gone through the evidence on record had agreed with the report and issued process against them to face the trial. The private complaint cannot be summarily rejected merely on the ground that different version of the occurrence was given by the petitioners unless the complainant/Respondent No, 1 is afforded opportunity to prove his version at the trial and the petitioners will also be at liberty to cross-examine the said witnesses besides adducing their defence version.
8. In the above circumstances I find no illegality in the impugned order and the revision petition having no merit is dismissed. However, the petitioners have an alternate remedy by moving application under Section 265-K Cr.P.C. for their acquittal before the same Court, which can pass appropriate orders without being influenced by the observations of this Court.