AJMAL MIAN; J.---This is an appeal with the leave of the Court against the judgment dated 26-2- 1989 passed by a learned Single Judge of the High Court of Sindh in Criminal Revision No. 86 of 1989, filed by respondent No.1. Against the dismissal of his private complaint under section 302/149, P.P.C. By the Additional Sessions Judge, Thatta, by his order dated 30-8-1987, riled by him against the appellants and one Adam Shah, allowing the same and setting, aside the above order of the learned Additional Sessions Judge and remanding the case to the learned Sessions Judge, Thatta, with the direction to apply his mind. And e pass an appropriate order on the evidence adduced during the preliminary inquiry and consider other factors. Leave to appeal was granted to consider the question, whether the F.I.R. Lodged by appellant No.1 in respect of the counter-ease, could be used to prove the case set up by respondent No.1 in his private complaint.
2. The facts to be noted are that a private direct complaint (hereinafter referred to as the complaint) was filed by respondent No.1 (Wahid Bux) in the Court of Sessions Judge, Thatta, on 25- 11-1986 under section 302, read with section 149, P.P.C: for the alleged murder of his brother Allah Dad and his brother-in-law Arab, who were active workers of the People's Party, against the present appellants and one Adam Shah son of Bahadar Shah. Appellants Nos.1 and 2 were the Preventive Officers of the Customs Department, whereas appellants Nos.3 to 6 were Customs Police Constables at the relevant time and were posted at Karachi. Aforesaid Adam Shah was a private person. In the complaint, it was alleged that appellant No.1 and said Adam Shah were already known to the complainant and deceased Allah Dad because the above two persons were associated with each other and were involved in trafficking contraband goods in Pakistan. It was also alleged that the complainant and deceased Allah Dad had orally informed the concerned higher authorities of the above illegal activities, which annoyed them and because of that, appellant No.1, said Adam Shah, and one Mohammad, in 1978 involved the complainant and deceased Allah Dad in a case under section 327/326/149, P.P.C. By getting F.I.R No.22/78 registered on 11-9-1978 at the Pakistan Steel, Police Station by said Muhammad, hereinafter referred to as F.I.R.
Of 1978. It was also alleged that on 23-4-1986 deceased Allah Dad and Arab went to attend marriage of Muhammad Ibrahim near Filter Piant, Gharo, on scooter of Arab. While they were returning, they stayed for the night in the village of Ramzan, and also distributed pamphlets in the villages of Dost Muhammad Baloch, Raza Muhammad Baioch, and Haji Sattar for the People's Party.
It was also asserted that on 24-4-1986 at about 8-30 a.m. Deceased Allah Dad and Arab, while returning to their home, turned towards Katcha road leading towards Hirjina Salt Works to have a round of their land where they saw three jeeps parked on the Katcha road, they slower down the scooter. It was alleged that when they were 15-20 paces from the parked: jeeps, appellant No.1 ordered opening of the fires and because of that, 13 round were fired at the deceased from sophisticated automatic weapons tearing their bodies to bits, resulting into instantaneous death.
3. On 9-12-1986 the learned Sessions Judge, Thatta, after recording the statement of the complainant, passed the following order:-- "Statement of complainant recorded under section 202, Cr.P.C. P.E. Has been ordered to be held.
The complaint alongwith the statement of the complainant and all the documents filed be made over to the learned Additional Sessions Judge, Thatta, for disposal according to law."
Thereupon, the learned Additional Sessions Judge, Thatta, recorded between 10-1-1987 to 20-7- 1987 the statements of P.Ws. Namely, P.Ws. 1 and 2 Sono Khan and Izzat Khan, the two brothers, who had land near the place of the incident, P.W.3 Haji Noor Muhammad, a Councillor of Union Council, Landhi, P.W.4 Ismail, a labourer and resident of Razzakabad, Karachi, P.W. Dr. Shahid Hussain, who carried out the post-mortem of the two deceased on 24-4-1986 and produced post-mortem reports, P.W. Ali Hassan, a photographer, who had taker. The photographs of the dead bodies on 24-4-1986, P.W. Abdul Qudoos, S.H.U who was Incharge of Police Station, Gharo, District Thatta, at the relevant time, who produced the F.I.R. Lodged by appellant No.1 on 24-4-1986 at 12-30 p.m..Under section 307/353/34, P.P.C. (hereinafter referred to as the F.I.R.), a copy of Mashirnama of Wardat to which Khuda Bakhsh and Gul Muhammad were the Mashirs, inquest reports of the two deceased and photographs of the deceased. It seems that a certified copy of F.IR No. A.S.O.-23/86 lodged on 24-4-1986 at 9-00 p.m. At N.M.B. Wharf, Karachi, by appellant No.1 in respect of the incident covered by the F.I.R., a certified copy of F.I.R. Of 1978, copy of police statement of Adam Shah recorded on 12-10-1978, copy of F.I.R. Of 1978, a certified copy o; interim charge-sheet in respect of the F.I.R. Certified copies of statements of Gut Muhammad and Khuda Bakhsh, Mashirs, a copy of notification dated 1-12-1985 under section 3 of the Customs Act, a receipt dated 28-4-1986 of a telegram, copy of an alleged telegram sent by the complainant to the Station House Officer, Gharo, on 24-4-1?86, and the copies of complainant's alleged applications addressed to the then President of Pakistan and the Governor of Sindh, a copy of Letter No.6235/DS-II/GV/86 dated 7-5- 1986 from the President's Secretariat, Islamabad, forwarding the complainant's petition dated 29- 4-1986 to D.I.-G. Police, Karachi, and a copy whereof was endorsed to the complainant, were also brought on record. The learned Additional Sessions Judge, after hearing the counsel for the complainant, by his order dated 30-8-1987 dismissed the above complaint for the following reasons:--
(i) that the evidence of P.Ws. Sono Khan and Izzat Khan does not support the complainant as they did not give the number of shots fired nor they disclosed the identity of the assailants and that there was discrepancy as to the arrival of the jeeps inasmuch as the former gave the time as 6-45 or 7-00 a.m., whereas the latter gave the time as 7-45 or 8-00 a.m, and there was also discrepancy as to the place where they were stopped by the Customs officials inasmuch as the former stated 20-25 paces, whereas the latter mentioned 15-20 paces away from the place of Wardat;
(ii) that the a4ove two witnesses gave the number of Customs officials jeeps as three, Whereas the F.I.R. Of Crime No.27 lodged by appellant No.1 disclosed that the Customs party had come in two jeeps, whereas the third jeep belonged to the smugglers;
(iii) that the names of the culprits were not known to the complainant or the witnesses but the same were taken from the F.I.R. Lodged by appellant No.1 which could not be used to prove the case of the complainant because it could only be used to corroborate or contradict the evidence of the first informant nor it could be used as an admission against the complainant or against other persons; and
(iv) that no evidence had been led to connect the appellants with the commission of the alleged offence.
4. Thereupon, the complainant filed the aforesaid revision in the High Court, which was allowed in the above terms for the following reasons:-- "I have gone through the order of the learned Sessions Judge, the admitted position is that deceased were killed but only the point which is to be determined is whether the Customs authorities has a right of self --defence to commit murder of the deceased as from the papers it appears that none of them sustained injuries. In these circumstances in view of PLD 1971 SC 713 and 1984 P Cr. L J 2240 the Court has to determine and consider the counter-version. However, without making any observation on the merits of the case and going into details, I am of the view that learned Additional Sessions Judge has not fully appreciated the facts of the version given in this counter-complaint and dismissed the same.--- After that, the appellants filed a petition for leave to appeal, which was granted to consider the above question.
5. In support of the above appeal, Mr. Fakhruddin G. Ebrahim, learned counsel appearing for the appellants, has vehemently urged as under:--
(i) that F.I.R. Lodged by appellant No.1 earlier could not have been used as a piece of substantive evidence or for any other purpose while holding preliminary inquiry under section 202, Cr.P.C. In respect of respondent No.1's aforesaid private complaint;
(ii) that the High Court could not have interfered with the order of the learned Additional Sessions Judge in exercise of its criminal revisional jurisdiction unless the order was patently unfair and the view taken by the learned Sessions Judge was not reasonably possible.
On the other hand, Mr. Aftab Ahmad Akhund, learned Advocate---General Sindh, who appeared in response to the Court's notice, has contended as follows:--
(i) that the F.I.R. Lodged by appellant No.1 could have been used for limited purpose at the stage of preliminary inquiry for finding out the names of the persons involved and the version of appellant No.1 given in the F.I.R.;
(ii) that for the purpose of deciding whether process should be issued or should not be issued to the accused named in the complaint, the burden of proof on the complainant is not very heavy as compared to at the stage of trial and, therefore, the learned Additional Sessions Judge was not justified to dismiss the complaint under section 203, Cr.P.C. And that the High Court was justified in interfering with the order of the learned Additional Sessions Judge.
6. Adverting to the above first submission of the learned counsel for the appellant, and the learned Advocate.-General Sindh, it may be pertinent to refer the contents of the F.I.R. Lodged by appellant No.1 on 24-4-1986 at 12-30 p.m. At the Gharo Police Station. It was alleged that a spy information was received on 22/23-4-1986 that contraband smuggled goods of Tautey Shah would be discharged near Hirjina Salt Works, pursuant whereof a Customs party was organised for keeping surveillance between National Highway and Hirjina Salt Works but the goods did not arrive on that night. It was further alleged that on the following day i.e. On 24-4-1986 at 2-30 a.m., the Customs party comprising of the police constables Muhammad Tufail, Khalid, Afzal, Aziz and Asghar, in Government vehicles bearing Nos.F.P.3283 and G.P.3298, blocked the area from National Highway to Hirjina Salt Works road. It was at about 9-00 a.m. On 24-4-1986 that a red coloured vehicle was spotted which was coming from the side of Hirjina Salt Works at a very high speed. It was asserted that the Customs party gave signal to the above vehicle in which certain persons were sitting to stop but it, instead of stopping, accelerated the speed. Thereupon, the Customs vehicle bearing No.G.P.3283 started chasing the above vehicle but from the above vehicle, firing started resulting into smashing of the wind screen and damaging bonut, whereupon the complainant directed his constables to fire upon in defence, pursuant whereof constable Khalid fired one bullet, P.C. Tufail fired five bullets, P.C., Aziz fired six bullets and Asghar fired one bullet. Because of the above firing by the Customs party, the above vehicle had stopped. It was also stated that it was discovered that two of the occupants of the said vehicle received injuries because of the above Customs constables firing and died, and their bodies were lying in the bushes. The other occupant, namely, Adam Shah of Razzakabad, Karachi, was alive, who disclosed the names of the above deceased, namely, Allah Dad son of Wasand, and Arab son of not known, both by caste Baloch and residents of Razzakabad, Karachi. It was further stated that the vehicle had a plate, bearing No.112-593 and that the above vehicle contained contraband goods mentioned in the Mashirnama. It was also stated that the dead bodies of the deceased, contraband goods, and a .32 bore licensed revolver of Adam Shah, which was issued by the District Magistrate, Hyderabad, were at the place of incident tinder the guard of the constables. It was also alleged that another white vehicle containing contraband goods, which was also coming with the above vehicle, fan away after noticing the Customs party. The detail of the smuggled items given in the F.I.R. Was as follows:--
(i) V.C.R. 68 (ii)V.C.P 30 (iii)Vidio Cassettes612
(iv) Walky Talky One
(v) Deck One
(vi) Silken Cloth 100 metres (vii)Tooth Paste 5 (viii)Brush 10
(ix) Soap 12
(x) Shampoo 3 It may be observed that neither the respondent No.1 nor his witnesses had known the names of the Customs officials. The two witnesses, namely, Sono Khan and Izzat Khan in their statements have stated before the Additional Sessions Judge in the preliminary inquiry that both were brothers, they owned land which was situated near Hirjina Salt Works. On 24-4-1986 they had come to their land at 6-00 p.m. And while they were working in the land they saw three jeeps on the Katcha road (at 6-45 or 7-00 a.m. As per Sono Khan and 7-45 or 8-00 a.m. As per Izzat Khan). It was further stated by them that after 20-25 minutes as per Sono Khan and after 10-15 minutes as per Izzat Khan, two persons, namely, Allah Dad and Arab also came on the said Katcha road (as per Izzat Khan on a scooter), they passed by the side of their land and exchanged Salaam with them as they were known to them. It was also stated by them that when the above two persons reached near the jeeps, they heard gun reports, thereupon they rushed towards the spot and they had gone as per Sono Khan 20-25 paces and as per Izzat Khan 15-20 paces, they were threatened not to go there.
They saw Allah Dad and Arab were lying on the ground besides their scooter and they also saw blood on the ground. According to Sono Khan, he went to Razzakabad by bus to inform respondent No.1 after leaving his brother Izzat Khan at the place of Wardat. The above two witnesses, who were allegedly near the place of Wardat, had not known the names of the appellants or of Adam Shah nor they had seen the actual firing. Respondent No.1 in his private complaint disclosed the names of the appellants and the factum of firing on the basis of the F.I.R. Lodged by appellant No.1 on 24- 4-1986.
8. The question, therefore, which requires consideration is, whether the above F.I.R. Could be used for any purpose in respect of the complaint directly made by respondent No.1. Mr. Fakhruddin G.
Ebrahim has referred to the following cases in support of his contention that the F.I.R. Could not have been referred to by respondent No.1 or by the High Court for the purpose of preliminary inquiry:--
(i) Siraj Din v. Kala and another PLD 1964 SC 26: in which Cornelius, C.J., while dealing with a murder case, observed as follows in respect of F.I.R.:-- "The first information report is undoubtedly a most important document in a criminal case, which has been investigated and eventually prosecuted in Court by the Police. It may not be evidence by itself, but it certainty furnishes a clue to the possible truth of the allegations against the accused.
When it is made by an alleged eye-witness, its truth or falsehood falls to be judged in relation to the facts and circumstances established by the evidence in the case. Instances are not unknown where the prosecuting Police have found the first information report to be totally false, and in such a case it is their practice, as well as their duty, to show how and why they came to that conclusion and it is necessary also that in presenting their own case, they should disown that which is set up in the first information report ... .... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... The F.I.R. Given by Siraj Din at the Police Post could, however, have been used only to contradict its maker, if he gave evidence at the trial. It could not be used as substantive evidence to belie the claim of the other P.Ws., to be eye-witnesses, he mere fact of the omission of any reference to them therein."
(ii) Sohni v. Bahaduri and others PLD 1965 SC 111: In the above case, this Court, while dealing with an appeal against acquittal by High Court in a murder case, inter alia observed that "It will suffice to say that the first information report is never substantive evidence in any case and in any event the initial report was by Sohni who was not a witness to the occurrence.
(iii) Nisar Ahmad v. The State 1971 SCMR 398: in which Hamoodur Rehman. C.J. Sitting with Waheeduddin Ahmed, J., while declining a petition for leave to appeal, inter alia observed that the first information report is not substantive evidence. It can only be used for contradicting or corroborating the maker thereof.
(iv) Sajawal Khan v. The State PLD 1979 SC (AJ&K)130: In the above case, Supreme Court of Azad Jammu and Kashmir also held that the first information report is never considered as a substantive piece of evidence and carries a small evidence in it `
9. There cannot be any cavil to the proposition that an F.I.R. Cannot be treated as a substantive piece of evidence and, that it can be used for contradicting the maker of the same if he appears at the trial as a witness. However, at the same time as observed by Cornelius, CJ. In the above referred case that it certainly furnishes a clue to the possible truth of the allegation against the accused as. It is the earliest version of the prosecution case. Reverting to the question, whether reference could have been made to the F.I.R. Lodged by appellant No.1 by the learned Additional Sessions Judge or by the High Court in connection with the preliminary inquiry, which was held by the learned Additional Sessions Judge under section 202, Cr.P.C. In this behalf, it may be observed that under section 202, Cr.P.C. 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(3) or transferred to it under section 191, or section 192, instead of issuing process, may if it thinks fit for the reasons to be recorded, postpone the same for compelling the attendance of the persons complained against and either inquire into the case itself or direct an inquiry or investigation to be made by the police officer or by such other person as it thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. The above section further provides that a Court of Session may, instead of directing an investigation under the provision of subsection (1), direct investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint. It also provides that any Court inquiring into a case under the above section 202, Cr.P.C.
May if it thinks fit, take evidence of witnesses on oath. In the present case, the Sessions Judge, Thatta, by his aforesaid order dated 9-12-1984 directed the Additional Sessions Judge, Thatta, to hold a preliminary inquiry and to dispose of the matter.
10. It may also be pertinent to observe that section 203, Cr.P.C. Provides that 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 in its judgment no sufficient ground for proceeding by recording his reasons for doing so.
11. It may again be observed that there cannot be two opinions that an F.I.R. Cannot be used as a substantive piece of evidence but, in our view, it can be looked into for certain purposes, for example, while considering the question of grant of bail, the Court generally refers to the relevant F.I.R. In order to find out, whether the accused who has applied for bail, was nominated in the F.I.R.
And if so, what overt act was attributed to him in respect of the commission of the crime involved.
Similarly, when there are two counter-versions of an incident, the Court may look into the two F.I.Rs.
Containing such counter-versions. We are also inclined to hold that the learned Additional Sessions Judge or the High Court could have looked into the F.I.R. Lodged by appellant No.1 in order to examine the two counter-versions contained in the F.I.R. And the complaint, or to find out the persons who were the members of the Customs party in respect of the above preliminary inquiry.
The F.I.R. Could have been used only for the above limited purpose, but it could not have been used for the purpose of deciding, whether there was a case for trial against the appellants.
12. Mr. Fakhruddin G. Ebrahim has also referred to the case of Syed Wahid Bux Shah v. The State and another (1968 PCr.LJ 1105), in which A.S. Faruqui, J. Of the erstwhile High Court of West Pakistan, has dilated upon the scope and object of the preliminary inquiry under section 202, Cr.P.C. As follows:-- "Moreover, if the purpose of section 202 is to enable the Magistrate to postpone the issue of process as is plainly the case, how then can that purpose be allowed to be frustrated when the Magistrate decides to hold a preliminary inquiry in which he issues notice to the accused and allows most of the things to be done which, properly, must wait until the issue of process. Therefore, though there may be no contravention of any specific provision of the Code it appears to me to be clear that it was not intended that in a preliminary inquiry under section 202, the accused should be, summoned by notice and allowed to have the prosecution witnesses cross-examined and produce his own side of the case either orally or in writing. The view that I have taken finds support from a number of decided cases. It was held by a Full Bench of the Madras High Court in the case of Appa Rao Mudaliar v. Janakiammal (AIR 1927 Mad. 19) that although allowing a proposed accused person to appear and to hear what he has to say might satisfy the Magistrate that there was no case for issuing process under section 204 yet such a procedure is entirely unwarranted by the Code."
Then Farooqui, J., after referring some further cases of Indian jurisdiction, concluded as follows:-- "I am clearly of the opinion that in an inquiry the purpose of which ostensibly was to determine whether process should be issued or not, the learned Magistrate did not act properly in permitting all this to have been done. After all a preliminary inquiry is not to be held as if it was a full-dress rehearsal for the trial. That is not the purpose of section 202."
13. Whereas, Mr. Aftab Ahmed Akhund has referred to the case of It.-Col. (Retd.) G.M. Nizamuddin v.
Irshad Hussain Khan and another PLD 1976 Karachi 653), in which Abdul Hayee Qureshi, J. (as he then was) sitting as S.B. Of the erstwhile High Court of Sindh arid Baluchistan, has also commented upon the scope of sections 202 and 203, Cr.P.C. As follows:-- "In relation to the complaints, dismissal is merited only in such rare cases where the Magistrate comes to the conclusion `in his judgment that no sufficient grounds exist for proceedings, action at each one of the stages does involve a mental exercise and a degree of appreciation then is far lighter.' While using the words which I have quoted above in the case of Muhammad Soofan, I had only meant to state that it would be rendering section 202, Cr.P.C. Almost nugatory and of no legal effect if the Magistrate had no option to satisfy himself with regard to the justification of issue of process. In such exercise it would be open to the Magistrate to look at the broad features of the evidence and even the same may make the case doubtful or unbelievable. I still adhere to that principle but would clarify that the powers of the Magistrate under section 203, Cr.P.C. Are not designed to clothe him with powers of such deep appreciation of evidence as is required at the time of the final judgment. But surely, it cannot be said that the Magistrate should form a judgment an regard to grounds for proceedings with the complaint without applying his mind at least to the broad features and aspects of a particular case. To take any other view would render the provisions of section 202, Cr.P.C. Virtually meaningless for in that case in any type of complaint which is filed before a Magistrate process has to follow automatically."
14. We are inclined to hold that in a preliminary inquiry under section 202, Cr.P.C. It is not contemplated that a notice be issued to the accused person before issuing a process as was pointed out by A.S. Faruqui, J., but at the same time, if the Court holding such an inquiry issues such a notice to the accused person before issuing process, it would not vitiate the inquiry. We are also of the view that there is a marked distinction as to the approach of appraisal of evidence at the time of holding of a preliminary inquiry and at the regular hearing of a criminal case. At this former stage, the Magistrate or the Court is not expected to examine the evidence or the case minutely, whereas at the latter stage, the Magistrate or the court is required to appraise the evidence thoroughly and to record its findings on the basis of such appraisal, and that any benefit of doubt arising out of such appraisal should be given to the accused person.
15. As regards Mr. Fakhruddin's second submission that the High Court could not have interfered with the order of the learned Additional Sessions Judge in exercise of its criminal revisional jurisdiction unless the order was patently unfair and the view taken by the learned Sessions Judge was not reasonably possible, it may be observed that in furtherance of his above submission, he has relied upon the case of Feroze Khan v. Captain Ghulam Nabi Khan and another PLD 1966 SC 424, and the case of Lakha v. Ata Muhammad and 3 others (1982 P Cr. L J 155). In the former case, this Court inter alia has held that in cases of revision petitions from acquittal, where the State has not thought fit to challenge the acquittal by an appeal, the Court would be very slow to interfere, unless non--interference would involve an endorsement of a patently unfair order or one which leads to miscarriage of justice, whereas in the latter case, a learned Single Judge of the Lahore High Court has taken the view that the revisional jurisdiction of the High Court under section 439, Cr.P.C. Was not meant to substitute findings of the Courts below by re-appraisal of evidence on record. In our view, the above cases have no application as an acquittal order recorded after full- dress trial by a competent Court cannot be equated with an order passed under section 203, Cr.P.C. For dismissing a private complaint, which can be dismissed if after holding a preliminary inquiry in the judgment of the Court, there is no sufficient ground for proceeding. The burden of proof in a preliminary inquiry under section 202, Cr.P.C. Is lighter on a complainant as compared to the burden of proof on the prosecution at the trial of an offence. The prosecution is to prove the case beyond reasonable doubt, whereas a complainant at the preliminary inquiry is not required to discharge above heavy burden of proof. The approach as to the appraisal of evidence is also different as pointed out hereinabove in para. 14.
16. In the instant case, the learned Additional Sessions Judge had referred to the minor contradictions between the statements of P.Ws. Sono Khan and Izzat Khan as to the time of the arrival of the three jeeps and as to the place where they were stopped by the Customs party after they rushed towards the place of incident upon hearing gun reports, which, in our view, were not material contradictions. Factum that the complainant and the witnesses did not know the names of the personnel of the Customs party was also given too much importance at the preliminary inquiry stage as a complaint can be investigated even against unnamed persons as pointed out by Mr. Akhund, learned Advocate-General in view of the definition of the term "complaint" given in clause (h) of section 4, Cr.P.C., which defined complaint as 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 officer.
He has also referred to the F.I.R. For the purpose of disbelieving the version of the above two witnesses, which was not warranted. The High Court's approach also seems to be not proper as it, without referring to the evidence produced by respondent No.1 in the preliminary inquiry has solely relied upon the contents of the F.I.R. By observing that "but only the point which is to be determined is, whether the Customs authorities have a right of self-defence to commit murder of the deceased as from the papers it appears that none of them sustained injuries".
17. We are mindful of the fact that the public functionaries which are entrusted with the functions to enforce law and in furtherance thereof to use force, if necessary, cannot be allowed to be subjected to harassm ent by private criminal complaints as this would not be in the interest of the public-at-large and the country and, therefore, the Courts before issuing any process to the public functionaries should act with care and caution and to see prima facie whether the complaint is not motivated mala fidely. However, at the same time, the citizens are also entitled to the protection of law and, therefore, the public functionaries cannot use force more than what is necessary and warranted by the facts and circumstances of a particular case. They do not enjoy freedom to use as much force as they wish. Keeping in view the above aspect, we are of the view that in the present case, there were certain peculiar features which had escaped notice of the learned Additional Sessions Judge, namely:--
(i) according to P.Ws. Sono Khan and Izzat Khan, deceased Allah Dad and Arab were not occupants of the jeep but they had come of their own (according to P.W. Izzat Khan on scooter). If this fact is to be proved to be true at the trial, it would adversely reflect on the version given by appellant No.1 in the F.I.R.;
(ii) that the F.I.R. Which was lodged by appellant No.1 at the Police Station, Gharo, on 24-4-1986 at 12-30 p.m. Did not contain any reference to the motor-cycle but in the F.I.R. Lodged by him at the Customs House at 9-00 p.m. On the same day, it has been stated that pilot motor-cycle driven by Abdul Sattar was observed coming from Hirjina Salt Works;
(iii) that Adam Shah, the alleged third culprit who was in the vehicle containing contraband goods and whose licensed revolver was allegedly found by the Customs party, was factually a witness in the F.I.R. No.22/78 lodged at the Pakistan Steel, Police Station by Muhammad son of Haji Saleh against the complainant and his deceased brother Allah Dad;
(iv) that both the deceased had one wound of entry of fire-arm on their back side, one of them on the back of chest, the other on the lower end of scapula at the back of left side;
(v) that neither any member of the Customs party nor said Adam Shah received any injury;
(vi) that respondent No.1 had brought on record the receipt of the telegram dated 28-4-1986 addressed to the S.H.O., copies of the said telegram and his applications addressed to the President of Pakistan and the Governor of Sindh dated 29-4-1986, and the endorsement made to him on the aforesaid letter dated 17-5-1986 from the President's Secretariat, forwarding his complaint to the D.I.-G. Karachi, indicating that immediately after the incident, his version was that his brother and brother-in-law were murdered.
18. We are, therefore, of the view that the operative portion of the order of the High Court remanding the case to the learned Sessions Judge, Thatta, for deciding the question, whether process be issued or not against appellants or any of them is proper and does not call for interference by this Court. However, we would direct the 1parned Sessions Judge, Thatta, that he shall himself hear the case and shall decide the above question after hearing respondent No.1 or his counsel without being influenced by any observation made by the High Court or by this Court in respect of the merits of the case. The appeal is, therefore, dismissed.