This is a revision petition under section 439, Cr.P.C., read with section 561-A, Cr.P.C. By Altaf Hussain Shah, Inspector of Police; petitioner against the orders of the learned Sessions Judge, Mianwali, dated 2-6-1982 and 19-9-1982 and that of Magistrate Section 30, Mianwali, dated 7-9-1982.
2. The brief facts of the case are that on 4-5-1982, Khaliq Dad Khan, respondent No. 1, filed a complaint against Altaf Hussain Shah, Inspector of Police, under section '302, P.P.C. Regarding the death of his brother Sikandar Hayat. The learned Sessions Judge, Mianwali, on 2-6-1982, sent the case to Mr. Saeed Ahmad, Magistrate Section 30, Mianwali, for inquiry under section 202, Cr.P.C. The learned Sessions Judge, however, did not examine Khaliq Dad Khan, respondent No. 1, the complainant, before sending the case to the Magistrate. On 7-9-1982, the said Magistrate submitted his enquiry report holding that a prima facie case stood made out against the petitioner under section 302, P.P.C. On 19-9-1982, after persuing the inquiry report and hearing the parties, the learned Sessions Judge, Mianwali, summoned the petitioner to face trial under section 302, P.P.C. By issuing non-bailable warrants for his arrest.
3. On behalf of the petitioner it is submitted that the order of the learned Sessions Judge, dated 2- 6-1982 is illegal as he could not have sent the case 'for inquiry without having first examined Khaliq Dad Khan, respondent No. 1 who was the complainant in the case. In these circumstances, it is submitted that both the orders of the learned Sessions Judge, dated 2-6-1982 and 19-9-1982 are illegal on the said ground. In this connection, learned counsel has placed reliance upon Muhammad Shafi v. Khushi Muhammad and others 1982 P Cr. L J 499. It is also contended that previously also the police had conducted an investigation into the same allegation and found the petitioner innocent and that a judicial enquiry was also held by Sheikh Ghazanfar Hussain A.D.C.
(G.), Sargodha, pursuant to the notification issued by the Home Department in the said connection who vide his report, dated 12-12-1981 had exonerated the petitioner from all criminal liability and that, therefore, contended that the further trial of the, petitioner amounts to under harassment and his tantamount to an abuse of the process of law.
4. On behalf of the complainant and the State it is submitted that the examination of the complainant under section 200, Cr.P.C., is not Mandatory in proceedings before the Sessions Judge and, in, any case assuming for a matter of argument that such discrimination was mandatory the order cannot be set aside in view of section 537, Cr.P.C. In this connection learned counsel .Has cited Shamim v. The State and another PLD 1966 SC 178; Mian Saeed Hasan v. Sadiq Khan PLD 1980 Lah. 431 and Muhammad Ibrahim v. Muhammad Hanif 1983 P Cr. L J 1051. As regards the judicial inquiry conducted earlier by the Additional Deputy Commissioner General, Sargodha it is stated that the same being administrative proceedings, they do not legally stand in the way of a proper trial, which is to be conducted on the judicial side.
5. I have given my anxious consideration to this case. Though section 200, Cr.P.C. Does call for the examination of the complainant before any further steps are taken on a private complaint, the omission to do so is not necessarily fatal, unless such omission has in fact A occasioned, a failure of justice. If any authority is required for this view. Shamim v. The State and another F L D 1966 SC 178; Mian Saeed Hassan v. Sadiq Khan PLD 1980 Lah. 431 and Muhammad Ibrahim v. Muhammad Hanif 1983 P Cr. L J 1051. May be referred. In any case, section 200, Cr.P.C. Is not mandatory in relation to cases triable by a Court of Sessions. In the instant case, Khaliq Dad Khan, respondent who was the complainant, was examined by the Magistrate during the inquiry proceeding. All the said evidence and the Magistrate's final report was perused by the learned Sessions Judge, Mianwali, before the petitioner was summoned on 19-9-1982 to face his trial. In these circumstances, the petitioner cannot be stated to have been prejudiced by any of his orders. In these circumstances,' the orders of the learned Sessions Judge, dated 2-6-1982 and 19-9-1982 cannot be stated to have been passed illegally. As regards the second submission regarding the judicial inquiry which exonerated the petitioner, the same, being on the administrative side, cannot act as a bar to the present trial, which is on the judicial side. No doubt the proceedings in the judicial inquiry will be brought to the attention of the learned trial Judge by the petitioner, who will have the opportunity to take the same into consideration when deciding the guilt or otherwise of the petitioner. In these circumstances, it cannot be said that the initiation of the trial against the petitioner amounts to an abuse of the process of law. In these circumstances, the impugned, orders are not liable to be quashed.
6. For the foregoing reasons, there being no merit in this petition, the same is dismissed. The office should immediately return the lower Court files to the learned Sessions Judge, Khushab, so that the trial against the petitioner may be taken up.