1. ' Briefly stated the facts of the case are that on a report lodged by Allah Bachaya son of Faqir Bakhsh, a case was registered against 7 persons namely Kalu, Rabnawaz, Muhammad Nawaz, Haji Shahbaz, Khuda Bakhsh, petitioners Nos.1 to 5 and Fazal Ahmad and Mukhtar Ahmad vide F.I.R.
2. No,113, dated 14-6-1995 for offence under sections 302, 148/149 of the P.P.C. During the course of investigation the police found the petitioners to be innocent and got them discharged from the Court of Magistrate. The police submitted challan only against Fazal Ahmad and Mukhtar Ahmad.
3. Allah Bachaya filed a private complaint in the Court of the learned Additional Sessions Judge, who recorded the statement of the complainant and then sent the case to the learned Magistrate for inquiry under section 202 of the Cr.P.C. The learned Inquiry Magistrate recorded the statements of 4 witnesses namely Muhammad Rafiq, Ghulam Farid, Karim Baldish and Dr. Muhammad Zahid and submitted his report on 26-2-1996, holding therein that prima facie no case was made out against the petitioners. However, the learned Additional Sessions Judge differed with his report and summoned the petitioners vide order dated 9-5-1996.
2. The petitioner's learned counsel mainly urged that during the course of inquiry under section 202 of the Cr.P.C. The Magistrate ought to have recorded the statement of the Investigating Officer who had found the petitioners to be innocent in the challan case; that the learned Additional Sessions Judge did not give due weight to the inquiry report and arbitrarily summoned the petitioners to face trial on a capital charge. He placed reliance on the case of Muhammad Ibrahim and others v.
4. Qudrat Ullah Ruddy and others (PLD 1986 Lahore 256). On the other hand, learned counsel for the State and the complainant urged that the trial Court is competent to summon an accused person even after recording the statement of the complainant; that during the course of inquiry sufficient evidence was produced to show that prima facie the petitioners were involved in commission of murder of Abdul Qadir alias Bagga; that the trial Court had exercised its discretion in a proper and judicious manner and no case was made out for interference in revisional jurisdiction under section 439 of the Cr.P.C.
3. A private complaint is a legal remedy available to an aggrieved person for setting the machinery of law in motion and taking cognizance of offences committed by the persons complained against. It is dealt with under the provisions of sections 200 to 204 of the Cr.P.C. The Court taking cognizance of the offence is required to examine the complainant on oath and reduce in writing the substance of his statement. After recording the statement of the complainant if the Court is satisfied that there is a prima facie case for issuing process against the person or persons complained against, it can at once issue process for his/their appearance in the Court. The Magistrate cannot proceed to issue process on the basis of averments contained in the written complaint alone and is required to satisfy himself that the complainant is well aware of the facts and asserts the same before him on oath. The remedy by way of private complaint is meant to provide direct access to an aggrieved person to a Court of law for redress of his grievance. It is not a proper course for a Magistrate taking cognizance of the offence on a private complaint to refer it to a police officer for inquiry without examining the complainant as required under section 200 of the Cr.P.C. After examining the complainant the Court may, for reasons to be recorded, postpone the issue of process for compelling the attendance of the person/persons complained against and either inquire into the case itself or direct an inquiry or investigation to be made by a police officer or by such other person as it deemed fit for the purpose of ascertaining the truth or falsehood of the complaint. It is so provided under section 202 of the Cr.P.C. In a case in which the complainant had approached the Court with a private complaint after being dissatisfied with the conduct of the police, it is inexpedient and improper to entrust the matter to any police officer for investigation. In such cases preliminary inquiry may be held by the Court itself and if the Court taking cognizance of the matter is a Court of Session then inquiry may be got conducted by a subordinate Magistrate. In the present case after recording the statement of the complainant the learned Additional Sessions Judge had referred the matter to the Magistrate for inquiry under section 202 of the Cr.P.C. In the preliminary proceedings under sections 200 and 202 of the Cr.P.C. The person complained against has no right of audience or participation in the proceedings until he is summoned as an accused in the case. In these proceedings the complainant is free to make allegations regarding commission of an offence according to his information and knowledge and produce evidence to make out a prima facie case. If the private complaint is filed after the police had found the persons complained against to be innocent during investigation in the challan case, it is not imperative or obligatory for the Inquiry Magistrate/officer to examine the Investigating Officer or look into the case diaries of the challan case. This will not only make the inquiry highly cumbersome but also prejudice the complainant by providing an opportunity to the same police officer to prejudice the mind of the enquiry Magistrate against the complainant. The investigating officer is essentially a defence witness and can be examined as such after process is issued against the person complained against. I am mindful of the contrary view expressed in the above-quoted case of Ibrahim. Which has been relied upon by the petitioners learned counsel. With due deference, I find myself unable to scribe to the view expressed therein regarding examination of the investigating officer during the inquiry under section 202 of the Cr.P.C. In the said case it was held:-- "Looking at the provisions of section 202 from all angles, in the event of an inquiry the person conducting the inquiry should not only record the evidence of witnesses produced by the complainant but should also examine the Investigating Officer, or, in the alternative call for and peruse the Ziminis, with his assistance, to inquire into the reasons and circumstances which may have weighed with him in holding some of the accused, whose names he has placed in column No,2, as innocent and to examine the nature of the evidence produced by such accused in their defence. Some reference of this evidence or examination should appear in the inquiry report, in defence to the case of the accused who have been found innocent, for without it the report would be indeed unfair."
5. ' It was further observed:-- "The advantage and protection gained by an accused who has been discharged after leading convincing evidence before the police during investigation should be given the respect it deserves and should not be allowed to be slightly disturbed."
6. ' With due respect, I may observe that in all cases police findings of innocence qua accused persons are not based on convincing evidence. Some times their findings are partial, manoeuvred or based on customary mode of "Qasam/Niyan" which has been deprecated by superior Courts in a number of judgments. Even if it is really based on convincing evidence, it can be considered and given due weight during the course of trial. However, the inquiry Magistrate/officer cannot be required to examine the investigating officer or go through the case diaries of the challan case with the help of the Investigating Officer or allow the accused an opportunity to put forward his defence. The preliminary inquiry is meant to allow a free and fair opportunity to the complainant to produce some evidence to make out sufficient grounds for issuing process against the persons complained against. Truth or falsehood of a complaint in the preliminary inquiry is to be judged on the basis of the evidence which the complainant chooses to produce. The person complained against may have a sound defence or strong material to controvert the allegations made in the private complaint but he cannot be allowed to join proceedings of the preliminary inquiry and produce the said material including the finding of innocence recorded in his favour by the C police.
7. In cases where a police officer registers a case under section 154 of the Cr.P.C. He can at once commence investigation on his own finding that commission of a cognizance offence was disclosed in the light of allegations made in the F.I.R. He can call the accused person to join the investigation and even arrest him. Similarly a Court of law taking cognizance of an offence can summon the persons complained against after examining the complainant on oath. The inquiry contemplated under section 202 of the Cr.P.C. Is not mandatory but only optional or discretionary with the Court. It may be held out of abundant caution in order to collect some evidence at the initial stage to justify issuance of process. The procedure of a private complaint should be made simpler and easier so that citizens, instead of taking law into their own hands, may resort to the process of law to secure justice. This is all the more necessary in cases where persons are disappointed or frustrated by the illegal, collusive or mala fide acts of the police. In Ibrahim's case, door has been opened for an accused person to join investigation or inquiry proceedings and even produce his defence, which in my view, is not in consonance with the letter and spirit of the provisions of sections 200 and 202 of the Cr.P.C. In this connection, the following para. From the judgment in Ibrahim's case is relevant:-- "Similarly, in the event of an investigation under section 202 the person conducting the investigation should apply his mind to the whole file of the case, including the statements of the witnesses produced by the complainant and by any of the accused, recorded under section 161, and witnesses which may freshly be offered for examination, and all other relevant facts and circumstances as may appear on the record or be brought or produced before him, to determine, whether, after keeping in view both the material produced by the complainant and the accused, a prima facie case appears against all or any of the accused named in the private complaint, reasonably showing their involvement in the offences imputed to them which, in fairness to both the parties, should go for trial and against whom the defence offered cannot be treated as unequivocally justifying the displacement of the complainant's case. Unless proper safeguards are provided to the accused to enable him to produce his defence, during investigation or to have the material relating to the same fully brought to the attention of or considered by the Inquiry Officer, during the inquiry a fair and equitable compliance of section 202 of the Code cannot be said to have been made." (Underlining is mine).
8. ' The learned Judge has further referred to the principles of Islamic justice and observed that truth cannot be permitted to be stifled in any manner and that with the present shift in thinking, Courts must change their attitude and give a fair share of attention to the accused's defence so that truth is permitted to freely surface and justice is done to both the sides freely and fairly. In the Islamic way of dispensation of justice even on a verbal complaint any highly placed person including Head of the State, can be summoned to appear before the Qazi or Court and answer the charge levelled against him. The safeguards embodied in sections 200 and 202 of the Cr.P.C. To ascertain whether sufficient grounds are made out from the complainant's evidence to summon the person complained against are in consonance with the principles of fairness and justice. The defence version or defence evidence of the accused can be considered at the proper stage during the trial.
9. If the course suggested in Ibrahim's case is followed then the parties will undergo the ordeal of proceedings similar to a trial during the inquiry and may have to undergo regular trial again.
10. Moreover, an accused apprehending an order of being summoned by a Court will resort to the popular modes of applying pulls and pressures for prevailing upon the Inquiry Magistrate. True, an accused person is treated as a "darling child" of the law but a complainant who seeks legal remedies in preference to extra-judicial ones deserves the same treatment by a Court of law.
11. Therefore, at the initial stage of the inquiry under section 202 of the Cr.P.C., an accused person cannot be permitted to appear at the scene to controvert the complainant's allegations against him. I am fortified in my view by a relatively recent judgment of the Federal Shariat Court reported as "Mst. Fatima Bibi v. Muhammad Jameel" (1988 PCr.LJ 864). The relevant part from the judgment is reproduced below for ready reference:-- "From the reading of the provision of law contained in Chapter XVI of the Code of Criminal Procedure, the scheme is clear that an accused person does not come within the picture at all till the process is issued. This does not mean that he is precluded from being present when the enquiry is held by a Magistrate. He may remain present either in person or through pleader with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face accusation, he has no right to take part in the proceedings nor the Magistrate has any jurisdiction to permit him to do so. No doubt one of the objects behind the provision of section 202, Cr.P.C. Is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the duty of the Magistrate while making an inquiry to elicit all facts not merely to protect the interest of an absentee accused person, but also with a view to being to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily by be determined on the basis of material placed before him by the complainant, whatever defence the accused may have c only be enquired into at the trial and an enquiry under section 202, Li P.C. Can in no sense be characterised as a trial for the reason that in law there can be but one trial for an offence. Permitting an accused person to interfere during the enquiry would frustrate its very object and that is why the Legislature has made no specific provision permitting an accused to take part in an enquiry. The enquiry is for the purpose of ascertaining the truth or falsehood of the complaint that is for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the persons concerned. The section does not say that a regular trial for adjudicating the guilt or otherwise of the person complained against should take place at the stage for the person complained against can be legally called upon to answer the accusation made against him only when a process is issued and he is put on trial. The object of the provision of section 202, Cr.P.C. Is to enable the Magistrate to form an opinion as to whether the process should be issued or not to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. What is to be seen is whether the evidence in support of the allegations of the complaint and not whether the evidence is sufficient to warrant a conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. An enquiry under section 202, Cr.P.C. Is not to be linked to a trial which can take place after process is issued and that there can be only one trial. The Magistrate making the enquiry has to do this only with reference to intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by the persons examined at the instance of the complainant. "
12. (Underlining is mine.)
13. ' This view was consistently followed in superior Courts before as well as after partition of the Sub- Continent of Indo-Pakistan. I may make a reference to some earlier judgments having a bearing on the controversy regarding presence of the accused persons at the enquiry and his right to participate in the proceedings. In the Full Bench case from the jurisdiction of Madras High Court reported as Apa Rao Mudaliar v. Janakiammal (99 IC (1927) 337), it was held that a Magistrate had no jurisdiction to require the presence of an accused during an inquiry or investigation under section 202 of the Cr.P.C. In a private complaint, In the case of Radha Kishun Sao v. S.K. Misra and another (49 Cr.LJ 1948) (p.599) it was held, "This Court has laid down in several decisions that the accused has no right to be heard at the stage when the complaint is under consideration. Whether a prima facie case has or has not been made out does not depend on whether the accused has been heard or not; it depends on the kind of evidence which is given by the complainant in support of his petition of complaint". Even if the accused happens to be present during the course of as inquiry, he is not to be allowed to ask questions and thus take part in the proceedings, as held in the case of Muhammad Amin v. Jogendra Kumar Banerjee and others (49 CWN 282). In the case of Moti Lal v. Emperor (29 Cr.LJ 39) (Lahore), it was held that it was incongruous to call on a person accused of an offence to show cause against the issue of process to him when proceedings under section 202 are in contemplation. In the case of Syed Wahid Bux Shah v. The State and another (1968 PCr.LJ 1105), it was held, "To me it appears to be plain that the whole purpose of the preliminary inquiry under section 202 is to avoid the issue of process to the accused person in a fit case. The object being that when it appears to a Magistrate that an issue of a process straightaway to the accused on a complaint which may be filed before him might result in unnecessary harassm ent he would for reasons to be recorded in writing postpone the issue of process until the holding of a preliminary inquiry. If, however, in that inquiry the Magistrate was to issue notice to the accused persons, get them before the Court, let them produce documentary evidence, take their statements oral or written and place it side by side with the prosecution evidence and allow the persecution witnesses to be cross-examined, then it is difficult to see the difference between a preliminary inquiry and an inquiry after the issue of process to the accused persons". In the case of Mst. Allah Bandi v. Dr. Arshad Malik, C.S.P., District Magistrate, Sargodha and another (1969 PCr.LJ 547), association of person complained against in preliminary inquiry under section 202 of the Cr.P.C. Was held to be illegal. In the case of Khadim Hussain v. The State and 8 others (1970 PCr.LJ 56), issuance of notice to the person complained against and allowing his counsel to appear in preliminary inquiry and dismissal of the complaint on the basis of copies of documents produced at the instance of the accused was held to be illegal. In the case of Qadar Dad v. Sher Muhammad etc. (1980 SCMR 843), it was held that production of entire evidence in preliminary inquiry is not necessary and that some evidence may be produced by the complainant to disclose sufficient grounds for issuance of process. In the case of Fateh Sher v. Khan Yasin Khan, A.S.I. And others (PLD 1959 (W.P.) Lahore 660), it was held, "It is, however, of utmost importance that the Magistrate or the person who has been asked to investigate into the matter under section 202 of the Criminal Procedure Code before submitting the report should give full and ample opportunity to the complainant to prove his allegations. This opportunity will be all the more necessary where the person complained against is public officer or other public servant". It was further held therein, "He could only dismiss the complaint by looking at the complaint and the statement of the complainant on oath, and the report, and nothing else". In the case of Jeoomal Tikamdas v. Emperor (40 Cr.LJ 807), it was held that a Magistrate should exercise his own independent judgment when he receives the report of investigation or inquiry that he had ordered.
14. He does not exercise his independent judgment when he merely accepts without giving reasons, the opinion of the police prosecutor. It was further held that it was not for the Magistrate to surrender his discretion or judgment to that of the police prosecutor. In the case of Abdul Majid v.
15. MD. Mansur Ali and 14 others (1969 PCr.LJ 692), it was held that appreciation of evidence at preliminary inquiry with the yardstick of trial Court is not the purpose under section 202 of the Cr.P.C. And that only prima facie case is to be made out and that full dress rehearsal of the trial is not desirable. In the case of Muhammad Afsar v. Muhammad Sadiq (1989 PCr.LJ 389), it was held that deeper appreciation of evidence in a private complaint at the stage of issuing summons is not required.
4. In the present case, the learned Magistrate had first of all examined the complainant under section 200 of the Cr.P.C. But did not issue process to the persons complained against. He opted to postpone the issuance of process and ordered an inquiry under section 202 of the Cr.P.C. During the course of inquiry the complainant produced Muhammad Rafiq, Ghulam Farid, Karim Bakhsh and Dr Muhammad Zahid in support of his case. The Inquiry Officer submitted the report that no prima facie case was made out. The Trial Court was not bound to follow the report made by the Magistrate. He independently applied his mind and rightly came to the conclusion that there were sufficient grounds for issuing process against the persons complained against. I do not find any illegality, impropriety or other infirmity in the impugned order to justify interference in the exercise of revisional jurisdiction under section 439 of the Cr.P.C.
5. For the forgoing discussion, I do not find any merit in this petition which is dismissed. The Trial Court will proceed with the trial and conclude the same on merits in accordance with the law.
16. Revision .