Through instant petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Mst.
Kaneez Mai (petitioner) has challenged the vices of order dated: 28.11.2019 passed by learned Judge, Anti- Terrorism Court, Dera Ghazi Khan, whereby complaint filed by the complainant (petitioner) has been dismissed.
2. Brief facts are that Mst. Kaneez Mai (petitioner) filed complaint under Sections: 364-A, 365-A PPC read with Section: 7 of Anti-T errorism Act, 1997 against respondents No.2, 3 and two unknown accused persons with the allegation that her two minor paternal granddaughters were abducted on gun point and thereafter ransom amount was demanded which was paid by her but even then abductees were not released; learned Judge, Anti-T errorism Court, Dera Ghazi Khan after receipt of the complaint and hearing preliminary arguments of learned counsel for the petitioner/complainant, dismissed the complaint vide aforementioned order dated: 28.1 1.2019.
3. Learned counsel for the petitioner submits that allegation mentioned in the complaint i.e. abduction of the minors on gun point for ransom clearly attracts offence triable by learned Judge, Anti-T errorism Court; further adds that learned Judge, Anti-T errorism Court, Dera Ghazi Khan while ignoring relevant facts and settled provisions of law on the subject, dismissed the complaint vide impugned order , which is not sustainab le; finally prays for setting-aside the impugned order .
4. Learned Assistant Advocate General, Punjab after going through the record appended with instant petition has also not supported the impugned order .
5. On the other hand, learned counsel appearing on behalf of respondents No. 2 and 3 has supported the impugned order .
6. Arguments heard. Record perused.
7. Before discussing facts/merits of the case, it is appropriate to refer that "Complaint" has been defined in Section: 4(h) of Cr .P.C. and for the purpose of ready reference, same is hereby reproduced: - ""Complaint" "Complaint" means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police-of ficer:"
After receipt of complaint, if complaint is made in writing to a Magistrate, who is not competent to take cognizance of the same, he shall return the complaint for presentation to the proper Court under Section: 201 Cr.P.C.; relevant portion of said section is as under: - "Procedure by Magistrate not competent to take cognizance of the case. (1) If the complaint has been made in writing to a Magistrate who is not competent to take cognizance of the case, he shall return the complaint for presentation to the proper Court with an endorsement to that ef fect."
However , after receipt of complaint by the Magistrate, who is competent to take cognizance of the case, Magistrate (concerned) at the time of taking cognizance on a complaint, has to at once examine the complainant upon oath and reduce the substance of the examination to writing, which shall be signed by the complainant as well as Magistrate and in this regard, relevant portion of Section: 200 Cr .P.C. is reproduced: - "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:"
Thereafter , Court (concerned) can postpone the issuance of process for compelling the attendance of the person complained against and either inquire into the case itself or direct any inquiry or investigation to be made by any justice of peace or by a police officer or by such other person for the purpose of ascertaining the truth or falsehood of the complaint; in this regard, relevant portion of sub-section (1) of Section: 202 Cr .P.C. is hereby reproduced: - "Postponement of issue of process. (1) Any Court, on receipt of a complaint of an offence of which it is authorised to take cognizance, or which has been sent to it under Section 190, sub-section (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 any inquiry or investigation to be made by [any Justice of the Peace, or by] a police-of ficer; or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint:"
Court may dismiss the complaint if after considering statement of the complainant recorded on oath and result of investigation or inquiry , if any, under Section: 202 Cr.P.C., in judgment of the Court there is no sufficient ground for proceedings; in this regard, Section: 203 Cr .P.C. is reproduced:- "Dismissal of complaints . [The Court] before whom a complaint is made or to whom it has been transferred 1[or sent], may dismiss the complaint, if, 2[after considering the statement on oath (if any) of the complainant and the result of 3[the investigation] or inquiry 4[(if any) under Section 202] there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing."
However , if Court considers that there is sufficient ground for proceeding, then shall issue process for attendance of the accused in the complaint; relevant portion of sub-section (1) of Section: 204 Cr .P.C. is reproduced: - "Issue of process. (1) If in the opinion of a 2[Court] taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the second schedule, a summons should issue in the first instance, 3[it] shall issue his summons for the attendance of the accused. If the case appears to be one in which accord ing to that column, a warrant should issue in the first instance, 3[it] may issue a warrant, or, if, 3[it] thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such 2[Court] or (if 3[it] has no jurisdiction 4[itself]) some other 2[Court] having jurisdiction."
It goes without saying that Anti-T errorism Court directly takes cognizance of the case triable by said court without being sent to it under Section: 190 Cr.P.C. and in this regard, relevant provision of subsection (3) of Section: 19 of the Anti-T errorism Act, 1997 is hereby reproduced:- "The Anti-terrorism Court may directly take cognizance of a case triable by such court without the case being sent to it under section 190 of the Code."
8. Perusal of available record appended with the petition reveals that petitioner/complainant filed complaint before Judge, Anti-T errorism Court, Dera Ghazi Khan while clearly mentioning in the same that her two minor paternal1 17 20 granddaughters were abducted on gun point and thereafter ransom was received for release of the minors, which was paid by the petitioner but even then minors have not been released, therefore, alleged offences are triable by the Anti-T errorism Court; proper course to be adopted for learned Judge, Anti- Terrorism Court after receipt of complaint was to at once examine the complainant upon oath under Section: 200 Cr.P.C. and then to proceed further in accordance with law as detailed above but learned Judge, Anti-T errorism Court, Dera Ghazi Khan has adopted novel method after receipt of complaint by dismissing the same just after hearing preliminary arguments of the learned counsel. For the foregoing reasons, impugned order is not sustainable in the eyes of the law and same is hereby set-aside; resultantly , matter is remanded to the learned Judge, Anti-T errorism Court, Dera Ghazi Khan for proceeding with the complaint (which shall be deemed as pending before said Court) in accordance with law.
With these observations, instant petition stands disposed of .