'SHAHID ANWAR BAJWA, J.---A complaint under section 200, Cr.P.C. Was filed by the present applicant before Vth Judicial Magistrate, Malir. It was stated in the complaint that complainant was posted along with 9 other security guards of AlRahim Security Company at land of one Syed Obaid Ahmed. Land measured about 30 acres in section 36-A, Deh Dozan, Tapo Gujjro, KDA Scheme No,33, Karachi. It was stated in the complaint that on 25-4-2006 at about 2300 hours while complainant was present at the land along with eight other security guards 20/25 persons came to land in five vehicles being one Toyota Corolla car and four police mobiles. It was stated in the complaint that all the persons were having Kalashnikovs and guns and most of them were in police uniform. As soon as vehicle came to halt persons alighted from vehicles and pointed guns straight on security guards. They extended threats and used abusive language and directed security guards to sit in vehicle on gun point. It was further stated in the complaint that while this was going on a Land Cruiser came from which Haji Adam Jokhio the present respondent No,3 came out and stated that security guards must convey message to Obaid that he would not be spared if land is not vacated.
Thereafter another group of 20 to 22 persons came. They were similarly armed. Complainant and other eight security guards were forcibly made to sit in the vehicle. One person who was in police uniform snatched watch and cash of Rs,9,200 from the complainant. Thereafter Haji Adam Jokhio and other accomplices, as alleged, kidnapped complainant and other eight security guards and thereafter they were kept at an unknown place on Super Highway. At about 4-00 a.m. Complainant and eight others were released near Bundo Khan Hotel at Super Highway. While releasing the complainant and eight other security guards, it was stated that if you (i.e, the complainant) again came at the land or narrated this incident to anyone he would not be spared. It was further stated in complaint that thereafter complainant and eight other security guards went to complainant's office and narrated about this incident to Munawar Zaidi in office of Security Company, who contacted Syed Obaid Ahmed in Dubai. Thereafter complainant went to the police station Sachal for lodging F.I.R. Against Haji Adam Jokhio and Waqar Malhan who was later on identified to complainant he as head of persons posse which came to the plot in the first phase. Duty officer refused to register F.I.R. The complaint was sent to police station through TCS and thereafter due to inaction by police petition under section 22-A, Cr.P.C. Was filed. Petition was allowed and ultimately F.I.R. No,215/2006 was registered. However, police did not investigate the matter and it was disposed of in 'B' Class without even recording statement of the security guards. Order of disposal of F.I.R. Was challenged in this Court in C.P. No,D-826/2006. On 31-10-2006 this Court disposed of this constitutional petition with direction to complainant that he may file private complaint against accused persons. It was stated in complaint that accused persons have committed offence punishable under sections 452, 386, 392, 365, 353, 109/34, P.P.C. Since the case was triable by Court of Session the Magistrate sent the same to Court of Sessions Judge. Statement under section 200, Cr.P.C. Was recorded and statements of witnesses Imam Bux, Anwaruddin, Raza Muhammad and Jam Muhammad were recorded under section 202, Cr.P.C. Thereafter, vide order dated 1-9-2008 complaint was dismissed under, section 200, Cr.P.C. This led to filing of the present Criminal Revision Application.
2. Learned counsel for the applicant submitted that that material available before the Court dealing with private complaint consists of three items; (a) complaint, (b) statement of complainant under sections 200, Cr.P.C. And (c) statement of witnesses under section 202, Cr.P.C.
Learned counsel submitted that all that the Court has to see is whether prima facie from the above material offence is made out or not. If Court comes to conclusion that prima facie offence is made out it must issue summons to the accused person.
3. Learned counsel for private respondents supported impugned order.
4. I have gone through impugned order and have considered submission made by the learned counsel.
5. In its order the Court has first recorded substance of the complaint and evidence in the following words:-- "From the perusal of the record, it reveals that P.Ws. Being security guards of Al-Rahim Company were deputed at the land of one Syed Ubed Ahmed, situated at KDA Scheme No,33, Karachi No,33, Karcahi , within territorial jurisdiction of Police Station Sachal. From the perusal of the record it further reveals that proposed accused in company of four police mobiles arrived at that land, ousted the complainant party, kidnapped them and snatched the valuable articles from complainant. From the perusal of the record, it further shows that P.Ws. Have similarly deposed in their statements that on 25-4-2006, when they along with complainant were present on there duty at the land of Ubaid Shah, where at 1100 hours night, four police mobiles, along with a private car arrived there, that the available people voiced that Haji Adam has arrived, therefore, P.Ws. Came to know that Haji Adam was present in that private Car, the Police Party then snatched nine thousand rupees and a watch from complainant and confined them at near superhighway for whole night and thereafter, released them. All the witnesses similarly have given the statements as stated above."
6. Thereafter Court below has given following reasons:-- "From the perusal of the record, it shows that no detail of the police was given that such four mobiles were belonged to which police station; that who was heading them and what was written over those mobiles as usually name of police station or wing is always used to be mentioned. The P.Ws. Had not seen and identified the accused Haji Adam, they have heard while saying the people that Haji Adam had arrived. The valuables were snatched by the police, they were ousted, confined and kidnapped by the police as well, but no single police man was proposed to be an accused.
Further more no name of proposed accused No,2 namely Waqar Ahmed was mentioned by the P.
Ws, but he has been proposed as an accused without showing his role, no single paper was produced in the record in order to verify that P.Ws. Being guards were actually at the land where the incident had taken place.
'From the above discussion, I am of the opinion that no case against the proposed accused was made out, hence this private complaint is dismissed under section 201, Cr .P.C. "
7. It appears that primarily five reasons prevailed with the Court below and they are:---
(i) Since it is alleged that there was police mobile and since on the mobile normally name of police station is written, witnesses have not stated name of police station.
(ii) witnesses have not identified accused Haji Adam Jokhio and have merely stated that they heard people saying Haji Adam had arrived.
(iii) It is alleged that valuables were snatched by the police official but no such policeman has been proposed to be an accused.
(iv) Waqar Ahmed Malhan DSP has been mentioned as accused but neither prosecution witnesses have named him nor any role has been assigned to him.
(v) Prosecution witnesses have not produced any evidence to prove that they were deputed at that place.
8. It has been stated in complaint that a person arrived there and it was stated by the other witnesses that Haji Adam had arrived there. It cannot be presumed nor required that complainant and his witnesses must have previous acquaintance with Haji Adam Jokhio. It would be for them to identify Haji Adam Jokhio at the time of evidence in the Court. It has been clearly stated in the complaint and in statements that the person who arrived there was other stated to be Haji Adam.
9. As far as Waqar Ahmed Malhan is concerned, it is specifically stated in Para 2 of complaint that Waqar Malhan was later on identified by complainant on 26-4-2006. Fact that they have not stated name of police station written on mobiles or they have not named any policeman would not be sufficient to wipe out prima facie, allegation against respondents Nos.3 and 4. Whether security guards were posted at the place or not would be question of evidence. It is stated in complaint that they were posted there and this is also stated in statement under section 200, Cr.P.C. This must have been treated as sufficient for prima facie purpose.
10. As stated above material available before the Court consists of three categories (i) complaint;
(ii) statement of complainant recorded under section 200, Cr.P.C. And (iii) statements of witnesses under section 202, Cr.P.C. Essentially what the Court has to see is whether prima facie allegations are made out or not. It is not a question of benefit of doubt being given to the accused at this stage. Stage before the Court below was not stage for the purpose of benefit of doubt or stage for deeper appreciation of evidence. It was stage to see whether prima facie allegations are made out or not. Complaint is very clear, statements of complainant under section 200, Cr.P.C. And witness support the complaint in material aspects, at least to extent of establishing prima facie case.
Consequently, order passed by the 1st Additional Sessions Judge Malir at Karachi is set aside and matter is remanded to trial Court. The trial Court is directed to take cognizance, issue summonses to the accused persons and thereafter proceed with trial in accordance with the law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.