' SHAHAB SARKI, J.---Through this criminal revision application the order dated 12.11.2010 has been assailed whereby the learned Vth Additional Sessions Judge, Sukkur has dismissed the direct complaint bearing D.C.No.46/2010 of applicant/complainant Pervaiz Hussain Shah without issuing process to the respondents/proposed accused.
2. The brief facts of the instant case are that on or about 13.3.2010 the brother of the present applicant, namely Naveed Hussain, was taken away by some police officials who were accompanied by 07 other private persons. The version of the applicant is that when he enquired from the police officials the reasons for taking away his brother, he was informed that the accused Shah Faisal has alleged that Naveed Hussain has committed some theft and until and unless he returns the stolen articles, he shall not be released. The applicant thereafter came to know that his brother Naveed Hussain was detained by the then SPO Pano Akil at his residence and that he was being tortured by the police officials as well as the private persons. The applicant thereafter filed a constitutional petition in this regard before this Court but the brother of the applicant was not produced and was consistently maltreated whereupon he ultimately expired after succumbing to his injuries on 27.03.2010. The applicant and his well-wishers proceeded to Taluka Hospital, Pano Akil where the postmortem of deceased Naveed Hussain was conducted and then lodged an FIR being Crime No. 73/2010 of Police Station, Pano Akil for offences under Sections 302, 342, 120-B, 147, 148, 220, P.P.C. In which most of the private persons were sent-up for trial whereas the police officials were let off, vide Challan dated 22.04.2010.
3. Being dis-satisfied with the investigation conducted by the police, the applicant filed a direct complaint in the Court of learned Vth Additional Sessions Judge, Sukkur on or about 19.06.2010. After recording the statement of the applicant under Section 200, Cr.P.C. And the statements of the witnesses under Section 202, Cr.P.C. The learned Judge on 24.6.2010 directed the 1st Civil Judge and Judicial Magistrate, Pano Akil to hold a preliminary enquiry to ascertain the truth or falsehood of the private complaint. Vide his report dated 16.07.2010 the 1st Civil Judge and Judicial Magistrate, Pano Akil gave his preliminary opinion that prima facie the case of the applicant was made out.
Thereafter vide impugned order the learned Vth Additional Sessions Judge, Sukkur dismissed the said complaint.
4. The learned counsel for the applicant/complainant has submitted that the witnesses in their statements under Section 202, Cr.P.C. Have supported the case of the applicant. He further submitted that the Medical Officer who conducted postmottem was also examined by the trial Court and as per his statement it is evident that the deceased was subjected to torture and maltreatment and on this account he had succumbed to his injuries. He further submits that the trial Court had fallen in error by deeply assessing the evidence, which is not permissible in such cases as the complainant is only bound to make out a prima facie case, which burden was discharged by the applicant and therefore the trial Court was bound to issue process to the accused persons. He has relied upon 1990 M LD 2073 (Abdul Karim v. Noor Muhammad and 3 others) PLD 2007 SC 9 (Noor Muhammad v. The State and others), 2006 PCr.LJ 422 (Soomar Khan v.
The State and another) and 2012 PCr.LJ 159 (Haji Jamil Hussain v. Illaqa Magistrate Section 30, Multan and 7 others).
5. The learned counsel for the proposed accused/respondents has submitted that the Challan was submitted on 22.04.2010 and after two months' time the direct complaint was filed. He further submits that if the applicant had any grievance against the FIR he should have sought prompt redressal but he chose not to do so. He has further submitted that by way of direct complaint the applicant cannot be allowed to improve his version or to expand the scope of the investigation unnecessarily. He has finally submitted that the direct complaint was filed with ulterior motives only to harass the proposed accused/respondents.
6. The learned DPG appearing for the State has supported the impugned order.
7. The learned counsel for the applicant in rebuttal has stated that it is a settled proposition of law that the registration of an FIR would not preclude the filing of a direct complaint. He has also stated that had all the accused been properly nominated and thereafter some of them being let off in Challan, only then he could have moved an Application under Sections 190 or 193, Cr.P.C, but in the instant case when the police, acting mala fidely, had not recorded his statement as given, then he has every right to file a complaint and the same has been done promptly.
8. I have heard the learned counsel for the parties and perused the record as well as the cited case law.
9. There is no cavil to the proposition that a direct complaint can be filed in cases where an FIR has also been lodged. The only thing to consider in the present case is whether sufficient material was available with the learned trial Judge to proceed with the case or not. To examine what constitutes sufficient material or sufficient grounds is peculiar to the facts of each case. To examine the complaint only a cursory assessm ent has to be made to form an opinion and in-depth assessm ent is not allowed. There is a difference between examining the prima facie evidence at the time of issuance of process and appraising evidence thoroughly at the stage of trial. It has also been laid down in the case of Noor Muhammad (supra) with reference to a direct complaint that:- - "It is not the stage where a material available on the record is assessed in depth but a prima facie case has to be made out to proceed further with the matter for issuance of the process. The burden of proof in a preliminary inquiry for the issuance of process is quite lighter on the complainant as compared to the burden of proof on prosecution at the trial of an offence as the prosecution is to prove the case beyond reasonable doubt and at the preliminary stage the complainant is not required to discharge above heavy burden of proof. The Court cannot overstretch the proceedings as to convert the preliminary inquiry or the averments made in the complaint to a stage of full-fledged trial of the case".
It has further been held in the same judgment that merely summoning an accused and issuing process against him does not take away any right of the accused but gives him an opportunity to afford an explanation to clear his position.
10. In the case of Haji Jameel Hussain (supra) it is stated that expression of sufficient ground used in Section 204, Cr.P.C. Means the presence of fact or evidence prima facie constituting the offence to enable the Court to issue the process.
11. The upshot of the above discussion is that at the stage of preliminary enquiry the Court only has to see whether there is prima facie material upon which the evidence can be recorded. In the instant case the applicant and his witnesses have deposed on oath about the commission of an offence and the preliminary enquiry assigned by the trial Court to the concerned Magistrate also reports that prima facie an offence has been made out. The evidence of Medical Officer clearly shows that there are various injuries upon the body of the deceased, which have been caused by hard and blunt objects. As per his statement and the report the injuries have been caused on the hands, legs, feet and buttocks of the deceased, which are prima facie evidence of torture. He has also opined that the time between the injuries and death is 03 to 04 days and this again lends veracity to the contention of the applicant. Vide impugned order the learned Vth Additional Sessions Judge has embarked upon a very deep appreciation and minute examination of the available material, which is not warranted under the law.
12. In these circumstances, the impugned order dated 12.11.2010 passed by the learned Vth Additional Sessions Judge, Sukkur in Direct Complaint No.46 of 2010, is hereby set aside and the case is remanded back to the trial Court to issue process and thereafter proceed with the case strictly in accordance with law.
Instant criminal revision application stands disposed of.