' This revision petition under section 439, Cr.P.C. Has been filed challenging the order dated 21-9- 1992 passed by the learned Additional Sessions Judge, Leiah, whereby the petitioners were summoned as accused for an offence under section 148/302/364/34/149, P.P.C. For causing the murder of Mst. Wazir Mai and Amir Muhammad in the complaint filed by one Ghulam Hussain.
2. Learned counsel for the petitioners contends that a case under section 302/34, P.P.C: was registered against Abdul Ghafoor and Allah Wasaya vide F.I.R. No,110 of 1992 dated 1-6-1992 with regard to the occurrence, for which the petitioners were summoned in the complaint case.
3. According to the story in the F.I.R. Abdul Ghafoor suspected illicit relations between Ameer Muhammad and Mst. ,Wazir Mai for which reason Abdul Ghafoor and Allah Wasaya committed murder of Ameer Muhammad and Mst. Wazir Mai and the occurrence was witnessed by Rahim Bakhsh and Murad Bakhsh.
4. It is stated that on 17-6-1992 a complaint under section 302/365/ 148/149/34, P.P.C. Was filed against the petitioners which was sent to the Court of learned Sessions Judge, Leiah who entrusted the same to a learned Additional Sessions Judge for further proceedings. The learned Court after recording the statement of the complainant, sent the same to a Civil Judge for inquiry under section 202, Cr.P.C. Who recorded the statements of the witnesses and found the petitioners prima fade guilty. However, Muhammad Iqbal, Mst. Haleeman and Mst. Khurshid were exonerated. Abdul Ghafoor and Allah Wasaya nominated accused in the F.I.R. And the petitioners were summoned in the complaint as accused by issuing their bailable warrants vide order dated 21-9-1992.
5. The learned counsel questioned the summoning of the petitioners on the ground that the learned Civil Judge was not competent to hold an inquiry and that the proceedings were in violation of section 202, Cr.P.C. Resultantly, the petitioners could not be summoned in the complaint case by the learned Additional Sessions Judge. He also contends that the story in the complaint carries different facts to that of the F.I.R. And, therefore, the F.I.R. As well as the complaint cannot proceed together.
6. I have heard the learned counsel for the petitioners and learned Assistant Advocate-General.
The question raised in the present revision petition is with regard to the scope and power of Court of Session under section 202, Cr.P.C. Sections 200 to 203, Cr.P.C. Formed an independent Chapter in themselves providing procedure to be followed in the matters of the private complaint lodged for criminal prosecution. A complaint under section 200, Cr.P.C. Is lodged before a Magistrate who if competent to try an offence in the complaint is bound to examine the complainant on oath and thereafter to follow the procedure provided under subsection (1) to section 202, Cr.P.C. If the case in the complaint is one triable by Court of Session, the Magistrate without examining the complainant shall send the case to the Court of Session.
7. Section 202(1), Cr.P.C. Provides a procedure to be followed by a Court including a Court of Session after exmination of complainant on oath and before issuance of process in a complaint and the following three courses are open to such Court under section 202(1), Cr.P.C.:
(i) To hold an inquiry into the correctness or otherwise of the allegation made in the complaint, itself.
(ii) To direct a police officer for enquiry or investigation as the case may be.
(iii) To direct such other person for inquiry as the Court thinks fit.
' The procedure provided under section 202(1), Cr.P.C. For the purpose of enquiry or investigation into the allegations made in the complaint is applicable to any Court including the Court of Session with no restriction or embargo. An enquiry under the ibid section is a preliminary enquiry only to find out truth and bona fide of the allegations made therein in the complaint and is not a regular trial to adjudicate the guilt, rather the purpose is to see whether there is sufficient material available to put a person complained against, on trial or not. The issuance of process is the stage at the conclusion of enquiry or investigation by the Court itself, therefore, an enquiry under the ibid section can be directed either to a Police Officer or to such other person including a Civil Judge as the Court thinks fit. The word "such other person" e has wide scope and is to be read in the context of any person other than a Police Officer or a Magistrate. Under section 202(2), Cr.P.C. a Court of Session may instead of directing for inquiry or investigation under the provision of section 202(1), Cr.P.C. Direct the same to be carried out by any Magistrate subordinate to it. Thus, a Court of Session while dealing with a complaint in addition to the powers available to it under section 202(1), Cr.P.C. Is also empowered under section 202(2), Cr.P.C. To direct a Magistrate subordinate to it to conduct an inquiry. A Court of Magistrate or any other Court as mentioned in sections 200 and 202, Cr.P.C. Including the Court of Session has to follow the procedure provided thereunder but for Court of Session there is yet another course open as provided under section 202(2), Cr.P.C. The different courses open to a Court of Session under section 202, c Cr.P.C. Are not mutually exclusive but may be resorted one after the other or even concurrently. It is the choice and discretion of the Court of Session either to proceed under section 202(1) or 202(2), Cr.P.C. But there is no compulsion for it to follow the procedure provided under section 202(2), Cr.P.C. A Magistrate, while proceeding with a complaint, may not be in a position to direct another Magistrate of his status, not subordinate to him, to hold an inquiry, and therefore, a Magistrate has to proceed in terms of section 202(1) and can direct an inquiry or investigation to be conducted by a Police Officer or by such other person as it thinks fit, whereas a Court of Session by virtue of subsection (2) of section 202, Cr.P.C. Can also direct a Magistrate subordinate to it to hold an inquiry. The provision of subsection (2) of section 202, Cr.P.C. Does not curtail the scope of subsection (1) of said section.
The arguments, therefore, carry no weight that only a Magistrate as provided under section 202(2), Cr.P.C. And no other person by virtue of section 202(1), Cr.P.C. Can be directed to make inquiry into the allegations made in a complaint. An inquiry conducted by a Civil Judge on the direction of Court of Session in terms of section 202(1), Cr.P.C. And issuance of process by the learned Additional Sessions Judge on receipt of inquiry report is not without the sanction of law. A Civil Judge or a Judicial Officer of his status can be included in the definition of 'such other person'. This word 'such other person' is wide enough and has been used in the context of a person with reference to any person other than a police officer or a Magistrate and a Civil Judge if not enjoying the powers of Magistrate' falls within the definition of such other person.
8. In the present case the learned Sessions Judge while proceeding under section 202(1) instead of inquiring the case himself or directing the inquiry or investigation to be made by a Police Officer, directed the Civil Judge to conduct the inquiry for the purpose of ascertaining the truth and falsehood of the complaint who for the purpose of section 202(1), Cr.P.C. Shall be termed as `such other person' irrespective of the fact that he has a special status of a Judicial Officer. A Civil Judge not enjoying the powers of a Magistrate with no bar can be directed to hold the inquiry by virtue of section 202(1), Cr.P.C. But not under section 202(2), Cr.P.C. The word 'such other person' used in section 202(1), Ci.P.C. Is with reference to a person other than a Magistrate or a Police Officer. It appears that the intention was to get the inquiry conducted by a Police Officer or such other person including a judicial officer otherwise the judicial officer could be excluded from the scope of such other person by express words. Under section 202(2), Cr.P.C. The Court of Session has the option to refer the inquiry to a Magistrate whereas under section 202(1) the complaint is to be filed before a Magistrate, therefore, a Magistrate is definitely not included in such other person as provided under section 202(1), Cr.P.C. Similarly the Civil Judge is excluded for the purpose of section 202(2), Cr.P.C. I am, therefore, of the considered opinion that the inquiry for the E purpose of section 202, Cr.P.C. Can be referred to a Civil Judge with no legal bar. I hold that there is nothing wrong with the order of the Additional Sessions Judge passed by him under section 202, Cr.P.C. For the purpose of conducting inquiry into the matter from a person as provided therein at his discretion and thereafter proceed with the complaint before him. The revision is accordingly dismissed.