IJAZ NISAR, J- The facts giving rise to this revision arc that on the receipt of warrant of arrest dated 27.9.1988 of Mirza Saghir Baig issued by the Assistant Political Agent South Wazirastan Wahana writ petition No.5908/1988 was filed in this Court by Mirza Saghir Baig which was disposed of on 20.12.1988 by my learned brother Muhammad Arif, J. The operative part of the order reads as under: "The petitioner is present in person. He has been directed to appear before the District Magistrate Sialkot during the 1st week of January, 1989 and has been further informed that in the event of his failure to appear the instant order shall automatically stand vacated."
In compliance with the above or inquiry as contemplated by section 86-A Cr.P.C, started in the Court of District Magistrate, Sialkot on the application dated 5.1,1989 of Mirza Saghir Baig aforementioned. The inquiry was still in progress when Raza Khan petitioner who was complainant in the case in which the warrants of arrest were issued against Saghir Baig from the Court of Assistant Political Agent, South Wazirastan Wahana, filed this criminal revision challenging the order dated 13.8.1990 of the District Magistrate, Sialkot whereby he hadobserved that the prosecution as well as the defence will be provided full opportunity to put their case before the Court holding inquiry under section 86- Cr.P.C. To enable him to arrive at a just and proper conclusion.
2. It is contended that the learned Inquiry Officer had mis-understood the scope of inquiry under section 86-A Cr.P.C, and was acting like a trial Court.
3. Learned counsel for the respondent contends that the inquiry as contemplated by section 86-A Cr.P.C, does not mean recording of the statements of the complainant and his witnesses only but to hear the case in the same manner, and to have the same jurisdiction and power including the power to order the production of evidence, as if the person arrested was charged with an offence committed within the jurisdiction of such Magistrate. He would direct removal of the arrested person only after he is satisfied that the evidence produced before him raised a strong or probable presumption that the accused had committed the offence mentioned in the warrant.
From the language of the section it is clear that both the parties, the complainant and the accused have to be provided equal opportunity to lead their evidence and it would be unjust if only the prosecution is afforded opportunity to I produce its evidence and the accused is denied the same.
No doubt, inquiry is different from the trial but both the parties have to be treated at par and provided with an equal opportunity to lead their evidence. Supposing there is a charge of murder against a person whose removal in custody to Tribal Area is wanted and if that person wishes to lead evidence to the effect the charge is frivolous and the person said to have been murdered is alive and that he can prove it provided an opportunity is provided to him in this behalf. In that situation it would be highly unjust if the Inquiry Magistrate declines such opportunity o him. The purpose of the introduction of section 86-A seems to be that no person should be allowed to be removed in custody to Trible Areas unless the evidence produced before the inquiry Magistrate raises a strong or probable presumption that the person arrested had committed the offence mentioned in the warrant. This purpose will not be achieved unless proper inquiry is held and the accused is also provided with a fair opportunity to show that the charge against him is frivolous or baseless.
Accordingly, I do not find any illegality or impropriety in the impugned order and dismiss the revision but the learned Inquiry Magistrate is directed to conclude the inquiry as early as possible.