Arbab Muhammad Tahir, J.- Through this Criminal Revision, the petitioner (Dr Rehiana B. Ali) has challenged order, dated 22.10.2022, passed by the learned Additional Sessions Judge, (West)
Islamabad, whereby the private complaint under section 200 of the Code of Criminal Procedure, 1898 (hereinafter the "Cr.P.C.") filed by the petitioner under section 302, 34, 201, 202 and 203 of Pakistan Penal Code, 1860 (hereinafter the "PPC") has been dismissed.
2. Succinctly, the facts are that one Farooq Ali son of Qurban Ali (hereinafter the "Deceased"), a UK national, was staying at the Ramada Hotel, Islamabad (the "Hotel") since 07.05.2021. On 16.03.2022 the petitioner (the real sister of the Deceased) inquired from the Hotel management about the Deceased as he was not responding to telephone calls. On the same day the Hotel management reported to the petitioner that her brother/Deceased has been found dead in his room in the Hotel.
Upon receipt of this information, the petitioner took the first available flight from U.K. to Pakistan reached the Hotel alongwith other family members. The dead body was shifted to Polyclinic Hospital for autopsy by the local police. However, the father of the Deceased i.e. Qurban Ali filed an application wherein he requested for handing over of the dead body without conducting autopsy.
Upon his request the dead body was handed over to the legal heirs.
On 31.03.2022, the petitioner filed an application before the Incharge, Police Station Secretariat, Islamabad, wherein she alleged that the circumstances of the death of her brother were doubtful as apparently the death of her brother was not natural and it was a murder. The petitioner faced difficulty in getting the FIR registered, therefore, she invoked the jurisdiction of the learned Justice of Peace. Pursuant to direction of the learned Justice of Peace, FIR No. 204/22, dated 11.04.2022 was registered under section 302/34, P.S. Secretariat, Islamabad. The local police after conducting investigations, recommended cancellation of the FIR.
Feeling dissatisfied with the investigation, the petitioner filed a private complaint under section 200 Cr.P.C. against the respondents alleging murder of her brother. The petitioner led cursory statements of three witnesses and tendered seven documents in support of her allegations. The learned trial court after affording an opportunity of hearing dismissed the private complaint through the impugned order, dated 22.10.2022, on the ground that no convincing or confidence inspiring incriminating material was placed on record of the learned trial court.
3. The learned counsel for the petitioner has contended that; the impugned order is illegal and passed without lawful authority; the learned trial court has failed to appreciate that in order to issue summons to respondents, the petitioner was required to establish "prima facie case"; establishing the "prima facie case" is does not mean "case proved"; the evidence led by the petitioner/complainant was cursory; the local police has conducted faulty investigation; the conclusions drawn by the learned trial court were based on misreading of the material available on record; the connivance of the local police and the Hotel management is obvious; the legal heirs of the Deceased were misled by the Investigating Officer; the Investigating Officer and the local police deliberately destroyed the evidence available at the crime scene; the law only requires availability of sufficient grounds for issuance of service; the principle of appreciation of evidence at the preliminary inquiry with the yardstick of the full length trial is not the purpose under section 202 Cr.P.C.; the petitioner has placed sufficient material on record to establish prima facie case; the place of occurrence is owned and controlled by the respondents; reliance has been placed on the cases titled "Mst. Nasreen Akhtar v. Hasnain Mehdi and 6 others" [2012 PCrl.LJ 853 FST], "Noor Muhammad v. The State and others" [PLD 2007 SC 9], "Muhammad Iqbal v. Government of Punjab through Secretary Home and 10 others" [2017 MLD 661 Lahore], "Imtiaz Rubbani alias Billu v. The State and another" [PLD 2008 Lahore 441], "Nazir Ahmed and others v. The State"
[1990 MLD 2084 Karachi], "Sarwar and others v. The State and others" [2014 SCMR 1762].
4. On the other hand, the learned State Counsel has argued that the impugned order is well- reasoned; that the petitioner has failed to establish involvement of the respondent in the commission of offence; no direct evidence is available on record against the respondents; the story narrated in the complaint is concocted; the reports of the Punjab Forensic Science Agency strengthens the stance of the respondents that the death of the Deceased was natural and no drugs or poison was administered; the Hotel management provided every possible assistance to the petitioner and the local police; the post mortem report is also negating the version of the petitioner; the negligence of the Hotel management does not constitute commission of the offence of murder; the private complaint was false and frivolous, hence rightly dismissed by the learned trial court.
5. Heard. Record perused.
6. The petitioner is real sister of the Deceased. Perusal of the record shows that the petitioner/complainant produced three witnesses i.e. Dr Rehiana B Ali (complainant herself), Yasmeen Ali (sister of the Deceased) and Mst. Inayat Begum (mother of the Deceased) and their cursory statements were recorded by the learned trial court. The complainant also brought on record of the learned trial court various documents. The learned trial court after conducting preliminary inquiry i.e. by way of recording cursory statements of the complainant and two other witnesses dismissed the complaint by concluding that sufficient grounds were not available to issue the process. The question before this Court is whether the learned trial can equate the "establishing a prima facie case" at the inquiry stage to a "case proved" after conducting a full- length trial, in a private complaint filed under section 200 of Cr.P.C. To address this question, it is essential to discuss the precedent law laid down by the superior courts on this subject.
7. The Hon'ble Supreme Court in numerous reported judgments has explained in detail the purpose and extent of the preliminary inquiry in the context of issuance of service in a private complaint filed under section 200 Cr.P.C. and has unambiguously held that the onus on the complainant during the inquiry is only to the extent of establishing a prima facie case' to proceed further and the learned trial court cannot examine the details of the case minutely. For the sake of convenience the relevant portions of the judgments are reproduced below.- "Noor Muhammad v. The State and others" [PLD 2007 SC 9] "The proceeding under section 204 or 203 depends upon the existence or non-existence of sufficient ground which have been taken by the Courts as the existence of prima facie case, the two expressions i.e., the existence of sufficient ground and prima-facie case have been construed by the Courts interchangeably. In the case of "Sher Singh v. Jatendranath Sen" (AIR 1931 Cal. 607), it was held "a prima facie case only means that there is ground for proceeding. It is not the same thing as proof which comes later when the Court has to find whether the accused is guilty or not guilty".
"Muhammad Faiz Khan v. Ajmeer Khan and another" [2010 SCMR 105] "It is settled principle of law that appreciation of evidence at preliminary inquiry with the yardstick of trial Court is not the purpose under section 202. The trial Court has to believe only to see a prima facie case is to be made out or not that is why full dress rehearsal of trial is not possible."
"Muhammad Farooq v. Muhammad Nawaz Jagirani and others" [PLD 2016 SC 55], "In complaint case, trial Court is not required to examine material minutely and or in depth, but has merely to see that prima facie a case has been made out to proceed further with the matter for issuance of process or summons; the High Court in exercise of inherent jurisdiction cannot strangulate the trial by overstretching its jurisdiction under Section 561-A, Cr.PC (see Noor Muhammad case, supra) and embark upon to examine adequacy and or inadequacy of evidence, which stage will only reach after charge is framed and complainant is given an opportunity to prove his case beyond reasonable doubt."
"Muhammad Jawad Hamid and another v. Mian Muhammad Nawaz Sharif and others" [2019 PCr.LJ 665 Lahore] "At this preliminary stage the court ascertains the truth or falsehood of the allegations levelled in the complaint. The complainant has to establish a prima facie case, because the word "sufficient ground" has been used for proceedings against the person complained against."
8. The petitioner/complainant in her cursory statements has alleged that her brother was murdered. She narrated facts, and as per the petitioner/complainant, the circumstances in which the dead body of the Deceased was found in the room of the Hotel were doubtful. The cursory statement of the complainant and other two witnesses attribute specific roles to persons mentioned therein, who as per the complainant were allegedly responsible for the murder of her brother. The facts narrated by the complainant in the private complaint, cursory statements of the witnesses and the material brought on record during the inquiry were sufficient to establish a prima facie case to proceed further with the case. Section 203 Cr.P.C. can, therefore, not be used as a substitute to section 265-K Cr.P.C. Similarly, the court conducting the inquiry cannot assume the role of a trial court. The cursory statements of the witnesses and the material available on record are sufficient to establish prima facie case to proceed further with the matter. As held in the case of Noor Muhammad, supra, there is a marked distinction as to the approach of appraisal of material on record i.e. averments made in the complaint and the statement made on oath by the complainant, at the time of holding of a preliminary inquiry for determining as to whether the process to be issued against the accused or not and at the regular hearing of the criminal case leading to determining the guilt or innocence of the accused. The Court is not expected to examine the material minutely whereas at the stage of trial it appraise the evidence thoroughly and record its findings on the basis of such appraisal and that any benefit of doubt arising out of such inquiry should be given to the accused. 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.
9. On the touchstone of the principles and law highlighted above, the impugned order, dated 22.10.2022, is not sustainable. The learned court below erred in concluding that sufficient material was not available to proceed further and overstretched the proceedings i.e. the preliminary inquiry to a full-fledged trial. The instant revision petition is, therefore, allowed. Consequently, the impugned order, dated 22.10.2022, is hereby set-aside by remanding the matter to the learned trial court for further proceedings in accordance with law. The matter is directed to be assigned to another learned court, competent to adjudicate the same.