Through this petition under section 561-A, Cr.P.C. The petitioners have assailed the revisional order of the learned Additional Sessions Judge, Lahore dated 28-1-1991, whereby he set aside the order of the learned Magistrate, dated 8-4-1990, dismissing the complaint of respondent No.1 filed against the petitioners.
2. The brief facts essential for the disposal of this petition are that respondent No. l lodged a report with Police Station Shahdara Town, Lahore vide F.I.R. No.371/89, dated 5-11-1989 that his son Sardar Ahmad aged 14/15 years student of 9th Class in MY.E. High School, Shahadara was kidnapped by the petitioner on 3-11-1981 at about 9-30 p.m. From the house of respondent No.1 and this occurrence was witnessed by Saleem Ahmad, Muhammad Anwar residents of Raj Garh near Gulshan-e-Ravi, Lahore. According to the F.I.R. The, allegations against said Sardar Ahmad were that he took photographs of the daughter of the sister of petitioner No.1. Thereafter, the accused persons gave severe beating to his son. He was kept in illegal custody and thereafter he was taken to some unknown destination. Sardar Ahmad on 23-11-1989 came to Police Station Shahadara and gave his statement but later on the police cancelled the F.I.R. And respondent No.1 filed a private complaint and these proceedings arise out of this complaint. Mr. S. Anwar Hussain, Magistrate Section 30 (Judicial), Lahore after recording the evidence of the complainant and his witnesses vide his order, dated 8-4-1990 dismissed the complaint on the ground that there are glaring discrepancies between the F.I.R., medico-legal report and other documents.
Respondent No.1 challenged this order of the learned trial Court in revision before the learned Additional Sessions Judge which was disposed of by him vide his order, dated 28-1-1991 on the ground that the documents which were taken into consideration did not form part of the record, hence the order of the learned trial Court is legally not sustainable and he remanded the case with the direction that both the parties should appear before the trial Court on 16-2-1991. The petitioners have assailed this order through the present petition.
3. The learned counsel appearing for the petitioners has vehemently contended that the learned trial Court was competent to examine the documents which though formally not proved on the record in order to ascertain the truth or falsehood of the complaint filed by the respondent and placed reliance on the following case-laws:-- PLD 1972 Lah. 370, PLD 1961 BJ. 96, PLD 1963 B.J. 14 and 1987 P Cr. L J 1439.
He on merits also contended that from the facts brought on the record on case is made out for the issuance of summons to the accused as there were glaring contradictions between the ocular evidence and medical evidence brought on the record and the order of the learned trial Magistrate dismissing the complaint was legally justified, hence it cannot be set aside in the revisional jurisdiction by the learned Additional Sessions Judge because neither it was without jurisdiction nor it was result of gross misreading of evidence. In the end, he forcefully argued that the learned Additional Sessions Judge has committed illegality while remanding the case directing the parties to appear before the learned trial Court in the manner as the accused petitioners have been summoned in the complaint. He could only under section 436, Cr.P.C. Direct for further inquiry into the case by setting aside the order of dismissal hence the order per se is without jurisdiction and liable to be set aside.
4. The learned counsel for the respondent, on the other hand, vehemently argued that the evidence produced before the learned Magistrate was sufficient to warrant the summoning of the accused person in the complaint and the learned Magistrate on extraneous consideration and erroneous appreciation of facts and law dismissed the complaint, hence the order passed by the learned Additional Sessions Judge is perfectly legal and justified and cannot be assailed by means of petition under section 561-A, Cr.P.C.
5. After hearing the learned counsel for the parties and perusing the record and case-law cited above, I see that there is no need to discuss the merits of the case in detail in view of the order which I propose to pass in this case. The learned Additional Sessions Judge can only order for further inquiry into the case involving the dismissal of complaint but cannot make a direction P' to Magistrate to take cognizance against any particular person as laid down in 1976 P Cr. L J 175.
6. Respectfully following the aforementioned case, I partly accept this petition and modify the order of the learned revisional Court to the extent that the learned trial Magistrate will hold further inquiry in the matter as contemplated under section 436, Cr.P.C. And thereafter he will form his mind whether it is a fit case in which the accused should be summoned or not. It world be open to him to either take additional preliminary evidence or he can in view of the observations made by the learned Additional Sessions Judge on merits summon the accused without formally recording additional evidence.
With above modification, this petition is disposed of accordingly.