1. This criminal application has been filed to challenge the orders passed by the learned Sessions Judge Khairpur and Civil Judge and F.C.M. Gambat.
2. Briefly the facts are that the present applicant Habibullah has lodged a direct complaint before the Civil Judge and F.C.M. Which was registered as No.44/86 against the present respondents. It is alleged that the learned Civil Judge and F.C.M. Without recording the statement of the complainant forwarded the complaint to the S.H.O. Police Station Gambat and after receiving a report from him he was pleased to pass an order as under.
3. "Heard the complainant and perused the report of Enquiry Officer S.H.O. Police Station Gambat, the matter is of the religious nature and is already pending before the learned S.D.M. Khairpur, hence complainant is directed to get decision from the Court of S.D.M. Khairpur. Moreover, I dismiss this complaint."
4. The present applicant then filed a revision application before the Court of Sessions Judge Khairpur being Criminal Revision Application No.44 of 1986 which was dismissed by short order dated 12-1- 1987.
5. I have heard Mr. Bhajandas, the learned counsel for the applicant and Mr. Ali Abbas Taqvi for the private respondents and Mr. Abdur Sattar Chohan, Advocate appearing for the Additional Advocate-General, Sindh for the State.
6. Mr. Bhajandas, & learned counsel for the applicant has submitted that this being a direct complaint under section 200, Cr. P C. The learned Civil Judge and F.C.M. Has no jurisdiction to forward the same to the S.H.O. For enquiry and then to dismiss the said complaint without examining complainant on Oath as is required under section 200, Cr.P.C. According to the learned counsel the above act of the Civil Judge and F.C.M. Is in contravention of the provisions of section 200, Cr.P.C. He has placed reliance on the case of Saeed Muhammad and others v. Raja Haq Nawaz and others 1986 P Cr. L J 1418. He has also placed reliance on the case of Muhammad Shah v.
7. Khushi Muhammad 1982 P Cr. L J 499. As against this S. Ali Abbas Taqvi the learned counsel for the private respondents has submitted that there is no illegality in forwarding the case for investigation to police by the concerned Magistrate. He has placed reliance on the provisions of section 156(3), Cr.P C. The learned counsel has also placed reliance cases of Naharo and another v. The State PLD 1985 SC 62, Mehdi Hussain Sial v. Malik Khizar Hayat and others 1983 P Cr. L J 1601 and Munawar Khan v. Muhammad Ishaq PLD 1975 Lahore 577. Mr. Abdul Sattar Chohan, the learned counsel for the State has supported the case of the present applicant and has submitted that the Magistrate cannot forward the complaint to the S.H.O. For enquiry without recording statement of the complainant.
8. I have considered the submissions of the learned counsel for the parties, Mr. S. Ali Abbas has submitted that whenever it is brought in the knowledge of the Magistrate that a cognizable offence has taken place he is competent to refer the matter to Magistrate under section 156(3), Cr.P.C. It may be observed that section 156, Cr.P.C. Falls within Chapter XIV of the Criminal Procedure Court, which is headed "application to the police and their powers to investigate". In the above said cases Bahadurw. The State the facts were that in case of report lodged with the police, the police had submitted a report to the Magistrate under section 173, Cr.P.C. And the Magistrate concurring with this report had ordered to discharge the accused. The said facts are not applicable to the present case which is a case initiated on the direct complaint. Similarly in the case of Mehdi Hussain Shah v. Khizar Hayat Khan also the Magistrate had cancelled the case on a report under section 173, Cr.P.C. Submitted by the police and therefore the facts of that case do not apply to the present case. In the case of Munawar Khan v. Muhammad Ishaq, Aslam Riaz Hussain, J. (as he then was) had observed that in case of a private complaint the Magistrate may instead of taking cognizance of private complaint send the same for registration and investigation by police. In the said case it was observed that if a Magistrate takes cognizance of a private complaint under section 200, Cr.P.C. Then he must proceed further in accordance with the provisions of Chapter XVI of the Code of Criminal Procedure. It was further observed: "It follows, therefore, that where a learned Magistrate, as in the present case, has not taken cognizance of a private complaint by applying his mind to it for decision and has not recorded the statement of the complainant or his witnesses, it is open to him to send the case to the Police for registration of a case investigating the same and filing a challan if there is enough evidence."
9. From the above it may be observed that where the Magistrate does not take cognizance himself, forwarded the complaint to the police for investigation and then it is for the purpose of the registration of the case and filing of challan and not for merely holding enquiry and report back to the Magistrate. As against this Bhajandas has placed reliance of the case of Saeed Muhammad v.
10. Raja Haq Nawaz in which Javid Iqbal, C.J. (as he then was) has held: "The legal point on which this petition has been admitted was that the Magistrate in this case without examining the respondent-complainant as well as the witnesses on preliminary basis sent the complaint under section 202, Cr.P.C. To the police for holding an inquiry and that the procedure adopted by him was illegal. Learned counsel had placed reliance on Ali Muhammad v. Bagh Ali 1977 P Cr. L J 891 and Abdul Majid v. Muhammad Mansur Ali 1969 P Cr.. L J 692. In Ali Muhammad v.
11. Bagh Ali it was laid down that it is necessary to examine the complainant before directing inquiry under section 202, Cr.P.C. And that order passed by the Magistrate forwarding complaint without recording statement of the complainant was held to be without jurisdiction and not for forming basis for further action. In Abdul Majeed v. Muhammad Mansur Ali it was held that order for judicial inquiry under section 202, Cr.P.C, without examining the complainant under section 200, was contrary to law and that proceedings of such inquiry and order passed thereon were held to be void and without any legal effect. Apparently the record is corroborating the stand taken by learned counsel for the petitioner and it was for this reason that the main petition for quashment was admitted to full hearing. As I have pointed out above, the other side has not entered appearance today at all despite the fact that the case was called and it is already 11-45 a.m. Since alone on the legal point raised in this case this petition is liable to be accepted, I accept the same and quash the proceedings under section 380, P.P.C. Pending against the petitioner by way of private complaint instituted by the respondent as against him and at present pending in the Court of Illaqa Magistrate Sargodha. This petition is disposed of."
12. It may also be observed that it is Chapter XVI of the Code of Criminal Procedure which deals with the private complaints and section 200 which falls within this chapter provides that a Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant upon oath and the substance of the examination of the complainant shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate. Section 202, Cr.P.C. Under this chapter empowers the Magistrate to postpone the issue of process for compelling the attendance of a person complained against and he may either enquire into the case himself or directing an enquiry or investigation to be made by the police officer, or by such other person as he thinks fit for the purpose of I ascertaining the truth or falsehood of the complaint. This section also requires that in any such case the Magistrate has to record the reasons for so ordering but this section comes after section 200, Cr. P.C. Which itself means that this provision will not dispense with the requirement of recording the statement of complainant on oath as provided under section 200, Cr.P.C. As held in the above cited case of Saeed Muhammad v. Raja Haq Nawaz. For the above reason I am of the view that the orders passed by the Courts below are illegal and are in contravention of the mandatory provision of section 200, Cr.P.C. I accordingly allow the present Criminal Miscellaneous Application and set aside the orders of the learned Sessions Judge Khairpur and Civil Judge and F.C.M. Gambat. The case is remanded back to Court of Civil Judge and F.C.M. Gambat with the directions to proceed in the case in accordance with the law as provided in Chapter XVI of the Criminal Procedure Code.