SYED MUHAMMAD FAROOQ SHAH, J.--By this common order, I shall dispose of the captioned Criminal Misc. Applications arising out of the common impugned order dated 10.07.2010, passed by the learned Sessions Judge, Karachi South.
2. City District Government, Karachi, Food Department, Civic Centre, Karachi through the concerned Food Inspector/Complainant approached this Court by invoking the jurisdiction under section 561- A, Cr.P.C., against the orders passed by the II-Civil Judge and Judicial Magistrate, Karachi South on the complaint, filed under section 13(1)(b) of the West Pakistan Pure Food Rules, 1960, read with section 23 of the West Pakistan Pure Food Ordinance No.VII of 1960, which were maintained by the Sessions Judge, Karachi South by passing the common impugned order dated 10.07.2010. The Applicants have made a prayer to set aside the orders passed by both the Courts below and remand back the case to decide the complaints according to law i.e. special statutes, the Pure Food Ordinance, 1960 (West Pakistan Ordinance No.VII of 1960).
3. Complaints under section 6(1)(A)(B)(C) read with section 23 of the West Pakistan Pure Food Ordinance No.VII of 1960, presented before the Court of II-Civil Judge and Judicial Magistrate, Karachi South by the concerned Food Inspector, City District Government, Karachi against the Respondent No.1 were dismissed under section 203, Cr.P.C., mainly on the ground that the photocopy of Notification in the shape of true copy is inadmissible piece of evidence according to Qanun-eShahadat Order, 1984. Penultimate paragraph of the impugned order of learned Magistrate reads in the following terms:- "In the absence of proper authorization letter, any independent evidence and authentic documentation, it is not possible for me to take the cognizance on stereo types reports and on the same grounds the prosecution in Courts usually ended in the shape of acquittal so no worth trial evidence is available for registration of case, hence cognizance declined and the complaint is hereby dismissed under section 203, Cr.P.C."
4. Being dissatisfied with the order, reproduced hereinabove, The City District Government, ,Karachi/Applicant/Complainant has preferred Criminal Revision Applications under section 435, Cr.P.C. before the Court of Sessions Judge, Karachi South on the facts and grounds averred therein with the prayer that the learned Magistrate be directed to conduct the enquiry into the complaint and on registration of the case take cognizance. The learned Sessions Judge by passing the impugned orders dated 10.07.2010, almost in all Revision Applications, has drawn entirely a different mechanism to decide such type of complaints though the impugned orders reflect that Mr. Masroor Ahmed Wasti, was appointed as amicus curiae to assist the Court; submitted that the trial Court had committed illegality. As per his worthy opinion, the trial Magistrate cannot brush aside the evidence of subordinates of the Complainant merely because they are officials, working under him; according to him in this respect, Article 85 of the Qanun-e-Shahadat Order, 1984 is very much clear. He further argued that being special law, the procedure provided under the Food Ordinance is to be followed; the Complainant has produced the authorisation, thus the complaint was competently filed. Learned amicus curiae was of the view that the learned Magistrate has not applied his mind, therefore the Revisions are liable to be allowed. After recording the worthy submissions of learned amicus curiae, the learned Sessions Judge was found agreed with the submission of Mr. Manzoor Ahmed (advocate for the Complainant) that the Magistrate has mislead in respect of the amendment made in the Province of Khyber Pakhtunkhwa. However, learned Sessions Judge considered that it will make no difference if there is no amendment in the Province of Sindh in section 32 of the Pure Food Ordinance. The impugned order transpires that the learned Sessions Judge by travelling beyond his jurisdiction, by dilating upon cognizable/non- cognizable offence; beside other aspect of the case has drawn an entirely different mechanism in the relevant paragraph of the impugned order which is reproduced as under: "I think it is necessary to provide guidelines for registration of a case under Pure Food Ordinance.
After taking sample from a shop, the authorized Inspector will place an entry in Daily Diary at area police station and send the sample to the Public Analyst. If a positive report is received from the Public Analyst then he will again approach the concerned Police Station and lodge a proper FIR on the basis of his earlier entry in Daily Diary. The matter then thoroughly and properly investigated and in this way the entire chain of impure food supply will be detected and busted and the citizen may enjoy pure and healthy food. With these observations, all the above mentioned Criminal Revisions faced the fate of dismissal."
5. Arguments heard. Record perused.
6. Order of dismissal of complaint under section 203, Cr.P.C., by the learned Magistrate reflects that the complaints were dismissed on the sole ground of annexing photocopy of the Notification in the shape of truce being inadmissible piece of -evidence according to the Qanun-e-Shahadat Order, 1984. It is an admitted position that the complaints were dismissed at the very inception without recording the statement of the Complainant under section 200, Cr.P.C. It shall not be out of context to mention here that section 200, Cr.P.C., stipulates that 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. However, section 202, Cr.P.C., postulates that 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 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 of ascertaining the truth or falsehood of the complaint. Since the complaint was dismissed under section 203, Cr.P.C., it shall be advantageous to reproduce hereunder the relevant provisions i.e. section 203, Cr.P.C., which deals with dismissal of complaint:- "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."
7. A bare reading of aforementioned provisions of Criminal Procedure Code stipulates that the said provisions empower the Magistrate before whom a complaint is made or to whom it is transferred or sent, may dismiss the same after considering the statement on oath of the complainant and the result of the investigation he comes to the conclusion that there is no sufficient ground for proceeding under section 203, Cr.P.C., depending upon the existence or non-existence of sufficient ground, which is to be taken by the Court, as the existence of a prima facie case, as the complainant at the preliminary stage is not required to discharge heavy burden of proof, whereas the prosecution has to prove its case beyond reasonable doubt. Moreso, the dismissal of complaint under section 203, Cr.P.C., cannot be equated with the acquittal, recorded after/during trial, as argued by one of the learned counsel appearing for the Respondents, as held in the case of Mst.
Robin Rashid v. Farrukh Amin and another (PLD 2011 FSC 121) . The order under section 203, Cr.P.C., should be made by considering the material brought on record during cursory evidence and that which is a result of investigation or inquiry under section 202, Cr.P.C. The next legal plea, taken by the learned counsel for the Respondents, was that the Criminal Misc. Application under section 561-A, Cr.P.C. is not maintainable against the revisional order. In response to such legal objection; Mr. Sameer Ghazanfar, learned counsel appearing for the Applicant, while placing reliance on the case of Hidayatullah and others v. The State (2006 SCM R 1920), argued that the High Court is vested with the authority under section 561-A, Cr.P.C., to exercise the said powers to secure the ends of justice if noninterference with the impugned order will perpetuate injustice, in case the Magistrate concerned had passed the order without judicial application of mind, as per the law laid down in the afore-mentioned citation as well as in other cases, more particularly reported as Engineer Bashir Ahmed v. Senior Superintendent of Police, Islamabad and others (2002 SCM R 239).
8. Cognizance of offences by Magistrate under section 190(1)(a), Cr.P.C., provides that a Magistrate of First Class or any other Magistrate shall be empowered by the Provincial Government on the recommendations of the High Court may take cognizance of any offence upon receiving a complaint or facts, which constitutes such offence and a Magistrate is empowered to proceed the persons against whom the complaint or report has been filed if they appear to be involved in the commission of offence from the material/evidence brought before him.
9. Insofar as the word "complaint" is concerned, it has been defined in section 4(h) of the Cr.P.C., meaning the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that a person has committed an offence but it does not include the report of a police officer. No prescribed form or word is necessary, all that is required is that facts, which prima facie constitutes an offence, should be brought to the notice of the Magistrate. If a Magistrate takes cognizance under section 190(1), Cr.P.C., on the basis of complaint or facts, he would take cognizance and proceedings shall be initiated against the concerned. The Magisterial Court, if decides to take the cognizance, then it shall proceed to record the statement of the complainant under section 200, Cr.P.C., and after recording statement may postpone the issuance of process to persons complained against and adopt any of the following modes to ascertain the truth or falsehood from the statement of the complainant.
(i) Proceed with the investigation itself by recording statement of the witnesses of the complainant.
(ii) May refer the matter for investigation to the police or Justice of Peace and may refer the inquiry to any person, who shall have all the necessary powers under the Criminal Procedure Code in view of the subsection (3) of section 202, Cr.P.C.
10. The proper mechanism provided by the relevant provisions of Criminal Procedure Code has not been adopted by the learned Magisterial Court, as record reflects that upon receiving a complaint, he took the cognizance thereof under section 190(a) of the Code and thereafter it was incumbent upon him to examine the Complaint under section 200, Cr.P.C. then only inquiry or investigation that he can order is one provided under section 202, Cr.P.C. and if at all the original Notification in favour of the concerned Municipal Food Inspector, having been authorised to institutes a complaint, was not available, then the Court could have to summon the original record or direct the concerned to produce the original Notification instead of recording the order of dismissal of complaint under section 203, Cr.P.C. Record does not show that the said Notification was objected to by other side or it has been challenged at the preliminary stage of complaint. The objection as to the admissibility of documents ought to be raised during its production by the complainant but since in the instant matters, the statement of the complainant was not recorded under section 200, Cr.P.C., therefore, it cannot be said that he was not possessing the original document to produce it at the time of recording his statement; more particularly it was not the case that the complaint having been made by a person riot competent to do so and that the Court was not competent to take cognizance of the offence.
11. Apart from this I am not satisfied with the conclusion reached by the learned Sessions Judge with regard to the different mechanism, drawn by him, by passing the impugned order, whereby he has travelled beyond the scope of the case in hand. It needs not to be reiterated that statute provides a proper mechanism under section 200, Cr.P.C., which reads that the cognizance can be taken of a complaint made by the competent officer. In the present case, the complaint was made by the Food Inspector, duly authorised to do so by the Director General, Health Services, Sindh, and therefore, the officers were competent to lodge complaint.
12. For what has been discussed above, the common impugned order dated 10.07.2010, passed by the learned Sessions Judge, Karachi South so also the orders dated 07.01.2010 passed by the learned II-Civil Judge and Judicial Magistrate, Karachi South are set aside being not tenable in law.
Consequently, the instant Cr. Misc. Applications are allowed and the cases are remanded back to the concerned Magistrate for entertaining the complaints in accordance with law, expeditiously, without being influenced by the observations made by this Court.
13. The captioned Criminal Misc. Applications are allowed in the manner, indicated above.