MUHAMMAD TARIQ ABBASI, J.---By way of this Criminal Revision, the order dated 1-3-2013, passed by the learned Judicial Magistrate, Jehanian, District Khanewal has been called in question.
2. Through the above-mentioned impugned order, a private complaint filed by the petitioner, against the respondents Nos. 2 to 4 has been dismissed.
3. The learned counsel for the, petitioner has argued that it was the duty of the learned Judicial Magistrate to pass an order, towards summoning of the respondents, named in the private complaint or otherwise, on the basis of the material, brought on the record during cursory statements, but instead of adopting the prescribed procedure, the learned Judicial Magistrate, had passed the impugned order, on the basis of the facts and circumstances, which were not available on the record of the private complaint, hence the said order is not sustainable in the eye of law.
4. The learned Deputy Prosecutor-General appearing on behalf of the State and the learned counsel for the respondents Nos. 2 to 5 have seriously opposed the revision petition, with the contention that the impugned order being well-reasoned is not open to any exception and as such the petition is liable to be dismissed.
5. Arguments of all the sides have been heard and the record has been perused.
6. The record shows that on the complaint of the present petitioner, an F.I.R. No. 339 dated 11-7-2012, under section 394, P.P.C. at Police Station Jehanian, District Khanewal was registered against the respondents Nos. 2 to 5. During the investigation, the F.I.R. was found to be false, hence recommended for cancellation and accordingly the cancellation report was prepared by the Police and submitted in the court of learned Judicial Magistrate, Jehanian.
7. When the petitioner came to know, the above stated situation, he preferred a private complaint, which was duly entertained by the learned Judicial Magistrate, Jehanian. The cursory statements of the petitioner and one Abid Mehmood were recorded as P.W.1 and P.W.2 respectively. Thereafter, the learned Judicial Magistrate had passed the impugned order and dismissed the complaint, on the grounds 'hat the report of Radiologist and District Medical Board had not confirmed the alleged injuries and declared the same to be self-inflicted and that as per the report of the Investigating Officer, there was previous enmity between the parties and the present petitioner was an accused in a criminal case, got lodged by the respondents' side and that to force for compromise, a false occurrence was concocted, hence the allegations were false.
8. It has been observed that against the impugned order, passed by the learned Judicial Magistrate, the instant revision petition has directly been filed before this court. Although under section 439-A of Cr.P.C., the Sessions Court concerned has also power to entertain the matter under revisional jurisdiction, but there is no denial of the fact that under sections 435 and 439 of Cr.P.C., this court has vast powers to watch proceedings of the subordinate courts, under revisional jurisdiction. Through section 439-A of Cr.P.C., the revisional powers were extended to the Sessions Courts to lower the burden of the High Courts. Therefore if the instant revision petition has directly been filed before this court, then no strange has been committed and the revision petition in hand is quite competent and maintainable. In this regard, reference may be made to a judgment of this Court reported as Haji Jamil Hussain v, lllag Magistrate Section 30, Multan and 7 others" (2012 PCr.LJ 159).
9. Section 200 of Cr.P.C., prescribes a procedure for entertaining a private complaint. The said provision speaks as under:-- "Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate: Provided as follows:
(a) when the complaint is made in writing nothing herein contained shall be deemed to require a Magistrate to examine the complaint before transferring the case under section 192 [or sending it to the Court of Session].
[(aa) when the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complainant has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties:/
(c) when the case has been transferred under section 192 and the Magistrate so transferring it has already examined the complainant, Magistrate to whom it is so transferred shall not be bound to re-examine the complainant."
10. From the above-mentioned provision, it is quite clear that on receiving a private complaint, the concerned Judicial Magistrate shall immediately examine the complainant on oath and his statement shall be reduced into writing, which shall be signed by him as well as the Magistrate.
Meaning thereby that whichever the substance and the terial the complainant has, , must be brought on the record, for aluation by the Magistrate.
11. According to the section 203 of Cr.P.C., the court, before whom a complaint is made or transferred, can dismiss it. The said section reads as under:-- "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."
12. Section 204 of Cr.P.C., deals with issuance of process. It is reproduced herein below:-- "Issue of process.---(1) If in the opinion of a [Court] taking cognizance of an offence there is sufficient in which, according to the fourth column of the second schedule a summons should issue in the first instance, [it] shall issue its summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, [it] may issue a warrant, or, if [it] thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such court or (if [it] has no jurisdiction [itself]) some other Court having jurisdiction.
(2) Nothing in this section shall be deemed to affect the provision of section 90.
(3) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the [Court] may dismiss the complaint."
13. From the above mentioned, it is clear that an order under section 203 or 204 of Cr.P.C. shall be made only from the above-mentioned, it is clear that after considering the material brought on the record, during cursory evidence and the result of the investigation or inquiry, if any under section 202 of Cr.P.C. and nothing else, 14.It has been observed that in the matter in hand, the statements of the complainant and Abid Mehmood, recorded during cursory evidence as P. W.1 and P.W.2 were on the record and before the learned Judicial Magistrate, which, for the purpose of section 203 or 204 of Cr.P.C. should have considered, evaluated and then an appropriate order should have been passed, but it has been found that while passing the impugned order, the learned Judicial Magistrate has not even touched the above mentioned evidence and has preferred to pass the order on the basis of the material, which was not in the file of the complaint, but part of the State case, which was already cancelled and while dissatisfying the private complaint was preferred.
15.As a result of the above mentioned discussion, the impugned order could not be termed, requirement of the law and procedure and as such could not be held valid and justified.
16. Consequently, while accepting the instant revision petition, the impugned order is set aside, with a direction to the learned Judicial Magistrate to strictly follow the above-mentioned procedure and then pass an appropriate order, afresh.