ABDUS SATTAR ASGHAR, J.---This Criminal Miscellaneous Application under section 561-A of the Code of Criminal Procedure 1898 is directed against the order dated 26-11-2012 passed by learned Sessions Judge Multan whereby order dated 11-7-2012 passed by learned Illaqa Magistrate Multan was set aside and petitioner along with respondents Nos.3 to 6 were ordered to be summoned to face the trial in private complaint lodged by Muhammad Shareef respondent No, 2 in the offences under sections 364, 380, 506 Pakistan Penal Code, 1860 and 25-D of the Telegraph Act, 1885.
2. It is argued by learned counsel for the petitioner that after recording the cursory evidence of the complainant and the P.Ws. The learned trial Magistrate dismissed the complaint for want of sufficient evidence to summon the accused; that learned Sessions Judge while accepting the appeal against the order passed by learned trial Magistrate was not competent to summon the accused rather he could have only remanded the case to the learned trial Court in terms of section 436 Code of Criminal Procedure 1898 for further proceedings in accordance with law.
3. On the other hand learned counsel for respondent No,2 has resisted this petition with the contention that keeping in view the provisions of sections 202, 203 read with section 436 of the Code of Criminal Procedure 1898 learned Sessions Judge was competent to order the summoning of the accused while remanding the case to the learned trial Magistrate; that the impugned order passed by learned Sessions Judge do not suffer from any jurisdictional error or legal infirmity.
4. Arguments heard. Record perused.
5. At the outset it may be expedient to reproduce hereunder provisions of sections 202, 203 and 436 of the Code of Criminal Procedure 1898 for ready reference:-- "Section 202:--Postponement of issue of process.---(1) Any court, on receipt of a complaint of an offence of which it is authorized 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 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 in inquiry or investigation to be made by [any Justice of the Peace or by] a police-officer or by such other person as 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.
' 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 the 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 wrest without warrant.
(4) Any Court inquiring into a case under this section .May, if it thinks fit, take evidence of witnesses on oath.] Section 203:- dismissal of complaint. The Court] before whom a complaint is made or to whom it has been transferred or [sent] may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry if any under section 202 there is in his judgment no sufficient ground for proceeding: In such case he shall briefly record his reasons for so doing.
Section 436:- Power to order further inquiry. ---On examining any record under section 435 or otherwise---
(a) the High Court may direct the Sessions Judge to require [any] Magistrate subordinate to him to make, further inquiry into any complaint which has been dismissed under section 203 or subsection (3) of section 204 [....].
(b) The High Court or the Sessions Judge may direct the [any Magistrate] to make further inquiry into any proceeding in which order of discharge or release has been made under section 119]. "
6. The question involved in this case is that as to whether Sessions Judge in exercise of his powers under section 436 Code of Criminal Procedure, 1898 is competent to summon the accused while remanding the case to the learned trial Court. The point in issue has already been candidly resolved by the Hon'ble Supreme Court of Pakistan in the case titled Fazal Karim and others v.
Muhammad Boota and another (1991 SCM R 2157). The relevant extract of the dictum laid down by the Hon'ble Apex Court reads below:-- "It is true that section 436 does not mention in so many words the summoning of the accused. But if sections 202 and 203 are kept in mind and read together, there was no need to mention the obvious. In section 202 it is provided in positive language that one course is of summoning the accused forthwith without an enquiry. Though the other course of postponing the summoning is possible but for that, reasons are to be recorded. Hence it is obvious that what 202, Cr.P.C. Permits can undoubtedly be done by the Sessions Court under section 436, Cr.P.C. Namely summoning of the accused without enquiry.-- ' To sum up the Sessions Judge can order the summoning of the accused without an enquiry at all as under section 202, Cr.P.C. He can order summoning the accused on the basis of the inquiry, if any, held by the Magistrate before dismissal under section 203, Cr.P.C. He can also postpone the summoning of the accused as under section 202 by recording reasons in that behalf and can order the Magistrate to hold enquiry as further enquiry, if some enquiry was held before dismissal under section 263, Cr.P.C."
7. Perusal of the record transpires that during the course of cursory evidence in terms of section 202 Code of Criminal Procedure 1898 before the learned trial Magistrate, the complainant appearing as CW-1 and his witnesses namely Nazar Hussain CW-2 and Umar Hayat CW-3 categorically stated that respondents namely Zulfiqar and Abdul Ghaffar took the wife of complainant namely Mst. Ameera Mai for the purpose of effecting compromise between the parties and thereafter the complainant along with witnesses went to the respondents and demanded to return the wife of the complainant but the petitioner and respondents Nos.3 to 6 instead of returning the wife of the complainant threatened them with dire consequences and illegally detained her at some unknown place. It is astonishing that despite above noted statement of the complainant corroborated by the P.Ws. Learned trial Magistrate dismissed the complaint.
The learned Sessions Judge appreciating the material available on the record therefore rightly set aside the order dated 11-7-2012 passed by learned trial Magistrate and summoning the petitioner and respondents Nos.3 to 6 as accused remanded the case to learned trial Magistrate for further proceedings in terms of section 436 Code of Criminal Procedure, 1898. Needless to say that the powers of the Court of Sessions are not restricted by what is contemplated in section 436 Code of Criminal Procedure, 1898 and the Court can order the summoning of the accused without directing any further inquiry. The word may used in section 436 Code of Criminal Procedure, 1898 bears notable significance and confers a discretion with the Sessions Judge to order summoning of the accused after inquiry or without further inquiry while remanding the case to the learned trial Magistrate.
8. For the above reasons I do not find any jurisdictional error or legal infirmity in the impugned order dated 26-11-2012 passed by learned Sessions Judge Multan. The petitioner has no case to invoke the jurisdiction of this Court under section 561-A of the Code of Criminal IC Procedure, 1898.
This petition having no merit is dismissed.