' This revision petition has been filed to challenge order, dated 14-3-1998 whereby the petitioners have been summoned to face trial for an offence under section 302/34 of the P.P.C. In a private complaint instituted be Abdul Rashid, respondent No,2.
2. Briefly stated the facts giving rise to this petition are that on 26-10-1996 at about 7-00 p.m. Abdur Razzaq son of respondent No,2 was murdered whereupon a criminal case was registered against 4 accused persons namely Ghulam Hussain, Ghulam Shabbir, Nawazish Ali and Rehmat Ali (since dead) vide F.I.R. No,141, dated 26-10-1996 at Police Station Manawan, Lahore. The case was investigated into by Muhammad Yaqoob, S.I./S.H.O. Which was subsequently transferred to Imtiaz Ahmad Malik, D.S.P., Headquarters who opined that Petitioners Nos.1 and 2 and Rehmat Ali, deceased were innocent and that petitioner No,3 had committed the murder. The Supervising Officer Ghulam Muhammad Kalyar, S.P. Cantt. Division, Lahore also agreed with the said finding.
3. The police submitted a report before the Ilaqa Magistrate on 22-2-1997 for discharge of the accused found to be innocent. The learned Magistrate sought opinion of the learned Sessions Judge about his competence to discharge the accused. The learned Sessions Judge observed that any order may be passed in accordance with the law. The learned Magistrate discharged the accused persons vide order, dated 23-2-1997. The said order has been challenged by respondent No,2 through Writ Petition No,5479 of 1997 which is still pending.
4. Being dissatisfied with the outcome of the police investigation, respondent No,2 filed a private complaint in the Court of the Ilaqa Magistrate on 8-1-1998. It was sent to the Court of the learned Sessions Judge on 12-1-1998 who entrusted it to Mr. Muhammad Naseem Akhtar Khan, Additional Sessions Judge. The learned Additional Sessions Judge recorded the statement of the complainant and preliminary evidence of two other witnesses, took into consideration the documents available on the file (including certified copy of the post-mortem report, a copy of the F.I.R. And contents of the private complaint). On finding sufficient grounds to proceed further, the Court admitted the private complaint for regular hearing and summoned the petitioners to face their trial vide order, dated 14-3-1998 which has been impugned in the present petition.
5. The petitioners' learned counsel mainly urged that the inquiry contemplated under section 202 of the Cr.P.C. Was not limited to what the complainant had to sae; that it embraced the entire material collected during the police investigation to help the Court in arriving at a fair and just decision; that three accused persons were found to be innocent during the police investigation and in all fairness, the Investigating Officer should have been examined or the police diaries looked into to come to a proper conclusion whether the accused should be summoned to undergo the ordeal of trial; that the rule of care and caution ought to have been followed while looking into the allegations for arriving at a just and fair conclusion before summoning the accused persons; that a complaint may be false or motivated and the Court is not supposed to summon the persons complained against in routine. In support of his contentions, he relies on the following judgments:-- -
(1) Abdul Majid v. Md. Mansur All and 14 others 1969 PCr.LJ 692.
(2) Anwar Ali Khan and others v. Wahid Bux and others 1991 SCMR 1608.
(3) Khursheed Anwar v. The State and 3 others 1996 MLD 111.
(4) Ms. Zeba Bakhtiar v. Arshad Sami Khan and 5 others 1998 SCMR 922.
6. On the other hand, learned counsel for respondent No,2 urged that there was no illegality or any other infirmity in the impugned order to justify interference in the exercise of provisional jurisdiction; that the trial Court had itself held inquiry under section 202 of the Cr.P.C., recorded the statement of the complainant and preliminary evidence of two witnesses and summoned the petitioners on the basis of oral as well as documentary material; that at this stage, the Court was merely supposed to look to the material produced by the complainant who had come to the Court after being dissatisfied with the police investigation; that at the initial stage it was not necessary to examine' the Investigation Officer or look into the police Zimnis or result of the police investigation and that while summoning the accused persons in a complaint case, the Court has to lobk to "evidence and not the "opinion" of the Investigating Officer. In support of his contentions, he places reliance on the cases of "Kalu etc. v. The State and others PLD 1998 Lah. 539 and Mehdi Hassan etc. v. The State etc. (Criminal Revision No,344 of 1997, decided on 24.3-1998. In the latter case, the matter was taken to the Supreme Court of Pakistan through Criminal Petition for Special Leave to Appeal No,56 of 1998 which was dismissed vide order, dated 27-4-1998. He also relies on the following judgments:---
(1) Haji Muhammad Hanif v. The State PLD 1992 Lah. 314;
(2) Farman Ali and 2 others v. The State 1992 SCMR 2055; and
(3) Ms. Zeba Bakhtiar v. Arshad Sami Khan and 5 others 1998 SCMR 922.
7. There is considerable force in the arguments raised by learned counsel for respondent No,2. At the initial stage, the trial Court may postpone the issuance of process for compelling the attendance of the persons complained against and hold a preliminary inquire itself or direct an inquire or investigation to be made by any other person for ascertaining the truth or falsehood of the complaint. This has to be done on the basis of the material sought to be produced by the complainant. Even in a case in which the private complaint has been filed by a person after being dissatisfied by the police investigation it is not necessary for the trial Court or any other person holding inquiry under section 202 of the Cr.P.C. To examine the Investigating Officer or go through the case diaries in the Chillan case. I had expressed this view while deciding Cr. R. No,28 of 1996 at Bahawalpur Bench. Similar view was expressed by my learned brother Sh. Abdur Razzaq, J. In Criminal Revision No,344 of 1997. The said judgment was assailed before the Supreme Court of Pakistan through Cr.P.S.L.A. No,56 of 1998 which was dismissed vide order, dated 27-4-1998. There is also weight in the argument raised by learned counsel for respondent No,2 that in order to come to the conclusion that there are sufficient grounds for proceedings against the persons complained against, the Court has to advert to evidence and not the opinion of the Investigating officer recorded in the Chillan case about innocence of certain accused persons. In the case of Haji Muhammad) Hanif, relied upon by learned counsel for respondent No,2, a distinction was drawn between a "fact" and an "opinion" and it was held that 'as a general rule the opinion of a witness was irrelevant and inadmissible in evidence. Some opinions have statutory recognition under Articles 59 to 65 of the Qanun-eShahadat Order, 1984 but the same do not cover the opinion of an Investigating Officer regarding guilt or innocence of an accused person. In the reported case, the opinion of a D.S.P. Regarding innocence of two accused persons was held to be inadmissible in evidence. In the case of Farman Ali and 2 others the Supreme Appellate Court of Pakistan was pleased to hold that opinion of an Investigating Officer about culpability of an accused is not only irrelevant but also inadmissible. The Court had placed reliance on an earlier judgment of the Supreme Court of Pakistan in the case of Moonda and others v. The State PLD 1958 SC 275. In the case of Ms. Zeba Bakhtiar (relied upon by both the parties), it was held that the object of holding an inquiry under section 202 of the Cr.P.C. Was limited to find out existence of a prima facie case. It was emphasized that possibility of the accusation embodied in the complaint turning out to be false and frivolous at the trial should not over bear the Court from issuing the process if the un of alleged testimony of the complainant, prima facie, disclosed a case against the accused. In the case of Anwar Ali Khan and others relied upon by the petitioners' learned counsel, it was held that in a preliminary inquiry under section 202 of the Cr.P.C. It was not contemplated that a notice be issued to the accused person before issuing a process but if the Court holding an inquiry issues notice to the accused before issuing process it would not vitiate the inquiry. The inquiry may not be vitiated due to issuing of notice to the accused at the preliminary stage but it is settled law that it is not obligatory for the Court to issue such a notice and it is not the right of an accused to join proceedings at the preliminary stage. In the case of Khurshid Anwar, referred to by the petitioners' learned counsel, it was held that the Court taking cognizance of a private complaint ought to consider, prima facie, the merits of the ex parte evidence recorded during preliminary inquiry in a rational manner and on sound judicial principles before issuing process to the accused or dismissing the complaint. There is no cavil with the above said general principle of law. In the case of Abdul Majid, relied upon by the petitioners' learned counsel, it was ruled that the Magistrate's function in the inquiry under section 202 of the Cr.P.C. Was only to see whether the complainant had made out a prima facie case and nothing else. It was further held that the Court being concerned with existence of prima facie case, a protracted inquiry or a full dress rehearsal for the trial is not desirable.
8. In the present case, as observed above, the trial Court had properly perused the averments made in the complaint, statements made by the complainant and his 2 witnesses, the documentary material on the record including the post-mortem report and had rightly come to the conclusion that, prima facie, there were sufficient grounds for proceedings against the petitioners. It was not obligatory for the Court to examine the Investigating Officer or to go through the police diaries in the Chillan case before issuing process to the persons complained against.
9. For the foregoing discussion, I do not find any merits in this petition which is dismissed.
Revision .