TANVIR AHMAD KHAN, J-This revision petition is directed against the judgment dated 7.12.1988 passed by the learned Addl Sessions Judge, Chiniot whereby he issued process against the petitioner and one Zafar on a private complaint filed by respondent No.2 Muhammad Khan under section 302/34 PPC for the murder of Ahmad Khan.
2. The facts are that an FIR No.167 was lodged at Police Station Bhawana on 21.6.1987 at the instance of Muhammad Khan complainant against the petitioner and five others namely Zafar son of Sher Khan, Fayyaz son of Sarfraz, Muhammad Aslam son of Dildar Khan, Afzal son of Muhammad Khan and Ghulam Abbas son of Zulfiqar. It is pertinent to mention at the outset that aforsaid Ghulam Abbas is stated to have expired.
3. It is the case of the petitioner that two successive investigations were conducted and challan was submitted only against two co-accused, namely Fayyaz and Muhammad Aslam. The complainant Muhammad Khan being dissatisfied with the out come of the investigations filed the complaint before the Ilaqa Magistrate on 28.9.1987 against the afore stated 6 accused. The learned Add:Sessions Judge who was seized of this matter referred the complaint back to the Illaqa Magistrate under section 202 Cr.P.C, for preliminary enquiry. The Ilaqa Magistrate examined six witnesses and ultimately submitted his report on 23.10.1988 agreeing with the finding of the police earlier recorded whereby only Fayyaz and Muhammad Aslam were challaned. However, on the receipt of the report the learned Addl Sessions Judge, Chiniot vide his order dated 7.12.1988 disagreed with the report and issued process against the petitioner as well as one Zafar.
The learned counsel for the petitioner has argued that the learned Additional Sessions Judge has summoned the petitioner and one another person without recording any fresh evidence and has completely brushed aside the magisterial report.
The learned State counsel as well as the learned counsel appearing for the complainant have supported the order.
4. The perusal of the report of the Magistrate shows that he recorded preliminary evidence of the sue prosecution witnesses who supported the complaint case. Two of the prosecution witnesses have even stated that the dying declaration was recorded by Arshad Javed ASI at Rural Health Centre, Bhawana which was subsequently destroyed. The learned Ilaqa Magistrate apart from recording the preliminary evidence of six witnesses in support of the complaint, has also conducted a secret enquiry at the spot. According to him he could not get any support for the version of the complainant in his secret enquiry. However, in his report he has neither mentioned the number nor any description of those who participated in the said secret enquiry. This novel procedure of conducting secret enquiry cannot be approved. No reliance can be placed upon such an enquiry. Secondly, the powers of the Magistrate under section 202 Cr.P.C, are very limited.
He is only required to hold a preliminary enquiry just for the purpose of ascertaining the truth and bonafide of the complaint. He is not to weigh the evidence as he did in this case. The Magistrate holding an enquiry under section 202 Cr.P.C, has got no jurisdiction to find out whether the prosecution has been able to prove its case. The limited scope of such an enquiry is only to find out whether there is a prima-facie case. It was for the learned Addl Sessions Judge to apply his mind independently after receiving enquiry report. He is not bound to accept the report of the enquiry conducted by Magistrate. He has to arrive at his independent conclusion after evaluating all the material brought on record. In support of the proposition that the Additional Sessions Judge is not bound by the enquiry conducted by Magistrate under section 202 Cr.P.C., reliance can place upon 18 DLR 1966 Sarat Chandra Vs, Snmati Bala. 1982 P.Cr.L.J. 498 Muhammad Shaft Vs. Khushi Muhammad and others and 1983 P.Cr.L.J. 2241 Abdul Hamid & 2 others Vs. Abdul Aziz.
Resultantly, the impugned order dated 7.12.1988 passed by the learned Addl:Sessions Judge, Chiniot does not suffer from any error or illegality. The revision petition is dismissed.