' ABDUS SATTAR ASGHAR, J.---This criminal revision is directed against the order dated 5-11-2010 passed by learned Magistrate section 30, Liaqatpur whereby private complaint lodged by Zahid Hussain complainant/petitioner was dismissed. It also assails the order dated 21-6-2011 passed by learned Additional Sessions Judge, Liaqatpur whereby appeal filed by the petitioner was dismissed.
2. Precise facts leading to this revision petition are that Zahid Hussain petitioner lodged F .I.R. No,4 of 2004 dated 4-1-2004, under section 379, P.P.C., Police Station Liaqatpur against Abdur Rasheed and five others (respondents) alleging that he has obtained land measuring 12-Acers on lease from Abdur Rasheed accused and cultivated cotton and sugarcane crop thereupon that two months ago at morning time when he reached the land he found that his cotton crop comprising 9-Acers valuing Rs,75,000 kad been plucked by theft; that on his noise P.Ws. ' Muhammad Tayyab and Muhammad Aslam attracted to the spot and told him that cotton was plucked by Abdur Rasheed and others (respondents) at night time; that on different occasions the accused had also stolen his sugarcane crop comprising 3-Acers that he has been requesting the accused to redress the grievance but they ultimately declined. After investigation above noted F.I.R. Was cancelled by the police and proceedings under section 182, P.P.C. Were initiated against the petitioner/complainant.
3. After lapse of more than six years on 9-4-2010 petitioner lodged a private complaint under section 379, P..P.C. In the court of learned Magistrate Liaqatpur on the basis of the same allegations against the respondents. The learned Magistrate examined the complainant on oath as P.W.1, who reiterated the contents of complaint. Muhammad Tayyab (P.W.2) and Muhammad Aslam (P.W.3) produced by the complainant were also examined by the learned Magistrate during the inquiry under section 203, Cr.P.C. And thereafter dismissed the private complaint on the grounds that evidence produced by the complainant is neither cogent nor reliable or confidence-inspiring and that he has not come to the court with clean hands.
4. Feeling aggrieved complainant assailed the order dated 5-11-2010 passed by the learned Magistrate through an appeal before the learned Additional Sessions Judge, Liaqatpur, which was also dismissed vide order dated 21-6-2011. Both the orders are impugned by the complainant/petitioner before this Court while invoking the revisional jurisdiction.
5. Learned counsel for the petitioner has argued that the appeal was not competent against the order dated 5-11-2010 passed by learned Magistrate Liaqatpur; that the learned Additional Sessions Judge Liaqatpur should have converted petitioner's appeal into revision; that the impugned order dated 21-6-2011 passed by learned Additional Sessions Judge is without jurisdiction and of no legal effect and is liable to set aside. It is further argued by learned counsel for the petitioner that the impugned order dated 5-11-2010 passed by learned Magistrate whereby his private complaint was dismissed is against law and facts without looking into evidence produced by the petitioner/complainant; that the learned Magistrate could have made tentative assessment of evidence instead of looking deep into the history of the case. Learned counsel- for the petitioner has placed her reliance upon Noor Muhammad v. The. State and others (PLD 2007 Supreme Court 9), Imtiaz Rubbani alias Billu v. The State and another (PLD 2008 Lahore 441) and Muhammad Yonsaf and others v. The State (2000 PCr.LJ 488).
6. I have given patient hearing to learned counsel for the petitioner and perused the record.
7. There is no cavil to the proposition that the impugned order dated 5-11-2010 passed by learned Magistrate Section 30 Liaqatpur is not appealable, therefore, petitioner/complainant had wrongly invoked the appellate jurisdiction of the learned Additional Sessions Judge by filing the appeal against the impugned order. No doubt learned Additional Sessions Judge was competent to convert the wrongly filed appeal into revision under section 435, Cr.P.C. In order to satisfy himself as to correctness, legality or propriety of the findings and also as to regularity of any proceedings, before the learned Magistrate but he failed do so, therefore, entertainment of the petitioner's appeal and its disposal while exercising appellate jurisdiction he acted as coram non judice and thus impugned order dated 21-6-2011 passed by learned Additional Sessions Judge Liaqatpur is void ab initio and without jurisdiction.
8. At this juncture learned counsel for petitioner has argued that the case be remanded to learned Additional Sessions Judge with a direction to treat as a revision petition and decide it afresh. I am afraid learned counsel for the petitioner is misconceived. It will be a futile exercise to remand the case because section 435, Cr.P.C. Provides concurrent jurisdiction to this Court and the Sessions Judge to look into the correctness, legality or propriety of any finding and also as to the regularity of any proceedings of any inferior court, therefore, remanding of the case to the Sessions Judge will be sheer wastage of the time besides unnecessary further delay in disposal of a considerably old matter.
9. Since the petitioner has already invoked the revisional jurisdiction of this Court under section 435, Cr.P.C. Through this petition by calling in question the impugned order dated 5-11-2010 passed by learned Magistrate, therefore, there is no need to remand the case to the Sessions Judge at this stage.
10. Section 200 of Cr.P.C. Provides that on presentation of a complaint the Magistrate while taking cognizance shall examine the complainant on oath and the substance of examination reduced to writing to be signed by the complainant and by the Magistrate. Section 202 of Cr.P.C. Manifest that the court on receipt of complaint of an offence of which it is authorized to take cognizance may if it thinks fit for reasons 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 any Justice of the Peace) or by a police officer or by such other person as it thinks fit, for the purpose ascertaining the truth or falsehood of the complaint. Subsection (4) of section 202, Cr.P .C. Further provides that any Court inquiring into a case under this section may, if it thinks fit, take evidence of witnesses on oath. Section 203, Cr.P.C. Provides that the court before whom a complaint is made may dismiss the complaint if after considering the statement on oath (if any) of the complainant and the result of investigation or inquiry if any under section 202, Cr.P.C.
There is in his judgment no sufficient ground nor proceeding. In such case he shall briefly record his reasons for so doing.
11. Keeping in view the afore-referred provisions of procedural law, careful perusal of the record reveals that statements of the complainant and his witnesses Muhammad Tayyab (P.W.2) and Muhammad Aslam (P.W.3) recorded by the learned Magistrate in terms of section 202, Cr.P.C. Lacks intrinsic and inherent worth. The above statements were recorded on 9-4-2010 and 26-4-2010 respectively wherein the complainant as well as his witnesses categorkally stated that the occurrence took place about two months back. This part of their statements is a material contradiction to the complainant's earlier version as set forth in the F.I.R. No,4 of 2004 wherein he had alleged that the occurrence had taken place about two months back. It is obvious that complainant as well as his witnesses made tutored statements totally oblivious of the time and date of alleged occurrence, therefore, they are neither confidence-inspiring nor reliable.
12. Besides, it is admitted by the complainant and his witnesses in their statements, that consequent upon cancellation of his F.I.R. Police has initiated proceedings under section 182, P.P.C.
Against him. Obviously he has lodged the instant private complaint after six years of the alleged occurrence merely to avoid the consequences of the proceedings under section 182, P.P.C.
Although delay in lodging of the private complaint is no ground for its dismissal, however, in this case mala fide of the complainant cannot be ignored as he has not approached the court with clean hands. In' the above state of affairs, complainant's statement and cursory evidence of the P.Ws. Cannot be termed as prima facie reliable incriminating material to issue the process under section 202, Cr.P.C., Reliance is made upon Zafar and others v. Umer Hayat and others (2010 SCMR 1816) an extract whereof reads below:- "It is also settled principle of law that although no limitation is prescribed in criminal prosecutions, but yet the longer the complaint is delayed the less becomes the chance of believing in its truth, more particularly when it is based entirely _upon oral evidence."
13. In the light of the above quoted dictum of the Hon'ble Apex Court, perusal of the prosecution story and the testimonies of interested P.Ws. Neither reliable for confidence-inspiring, transpires that learned Illaqa Magistrate has rightly weighed the cursory evidence and other material on the record produced by the complainant with due care and application of judicious mind while passing the impugned order. It also does not suffer from any illegality, impropriety or irregularity of proceedings.
14. I have carefully gone through the dictums referred by learned counsel for the petitioner. Facts of the cited cases are altogether distinct and distinguishable from the facts of the instant case.
Therefore, dictums laid down in the said cases cannot be siphoned on to the facts of this case and are of no avail to the petitioner.
15. For the above discussion and reasons I do not see any merit in this revision petition. It is dismissed in limine.
Revision . 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.