JUDGMENT SHEIKH ABDUR RAZZAQ, J.- Briefly stated the facts are that on 18.4.1997 Sher Afgan Malik complainant/respondent No. 2 alongwith his family members had come to the house of his brother Parvez Hussain Malik at Jauhar Town, Lahore. His Brother sent (he son of complainant Ali Hassan and his own son Hasceb Malik to fetch bottles. At about 2.45 p.m. When they were returning home in the car and were only a few feet away from their house, Muhammad Atif, Muhammad Amer, Munir Ahmad and Mehdi Hassan stopped their car in front of their own car, took out Haseeb Malik and Ali Hassan from the Car and started beating them. Upon this Haseeb Malik told them that Ali Hassan was their guest and the should not be beaten. On their hue and cry Parvez Hassan, and his nephew Naveed Malik came out and saw that Muhammad Atif armed with Chhuri, Munir Ahmad armed with 222 bore rifle and Mehdi Hassan was armed with pistol. Mehdi Hassan find with his pistol, whereas Muhammad Atif inflicted Chhuri blows to Naveed Malik which hit on his right flank.
Haroon Malik and complainant etc. Stepped forward to rescue Naveed Malik etc. Upon which Mehdi Hassan caught hold of Haroon Malik and find with his pistol hitting him (Haroon Malik) on his left hand. Muhammad Atif and others ran away raising Lalkara. Accordingly law was set into motion by Sher Afgan by filing a written complaint. Initially case was registered against the assailants under Sections 324/34 PPC. As a result of death of Naveed Malik the offence under Section 302 PPC was also added.
2. The investigation of this case was conducted by different police officers who found Mehdi Hassan and Munir Ahmad innocent and finally the challan was submitted against Muhammad Amer and Muhammad Atif.
3. Feeling aggrieved of the hostile attitude of the police, the petitioner/respondent No. 2 (Sher Afgan Malik) preferred a private complaint against the accused/petitioner named in the FIR No. 139, dated 18.4.1997. The complaint was entrusted to Ch. Zafar Hussain, A.S.J., Lahore, who after conducting preliminary inquiry under Section 202 Cr.P.C, summoned all the for accused to face trial under Sections 302/324/34 PPC vide order dated 1.11.1997.
4. The accused/petitioners Mehdi Hassan and Munir Ahmad have felt aggrieved of the order dated 1.11.1997 and have find this revision petition.
5. Arguments have been heard and record perused.
6. It is submitted by the learned counsel for the accused/petitioners that as a result of FIR No. 139, dated 18.4.1997 the case was firstly investigated by Fawad Waheed, SI/SHO PS Township who found the present petitioners innocent in this case, that as a result of subsequent investigations conducted by Rashid Mehmood, SI/SHO PS Green Town, Javed Hussain Shah DSP Nawankot, Tariq Masood, SI PS Sabzazar, Mr. Mujahid SP and DSP, CIA Cantt, the petitioners have been found innocent and as such they have not been sent up to face trial, that lower Court while conducting the inquiry under section 202 Cr.P.C, simply relied upon statements of PW1 Haroon Malik, PW2 Parvez Hassan, PW3 Haseeb Malik and PW4 Parvez Islam besides the statement of Sher Afgan Malik and has not cared to examine the Investigating Officers named above who had held the present petitioners as innocent in their respective investigations, that it was the duty of the lower Court to examine the said Investigating Officers or at least to go through the case diaries regarding the investigations conducted by them, that as they have not looked into the investigation papers of the police officers named above, so the lower Court has not exercised the jurisdiction vested in it in accordance with law; In support of his contention he relied upon Muhammad Ibrahim and others v.
Qudrat Ullah Ruddy and others (PLD 1986 Lahore 256), Khurshid Anwar v. The State and 3 others (1996 MLD 111-Karachi), Khatija v. The State and another (PLD 1978 Karachi 348) and Anwar Ali Khan and others v. Wahid Bux and others (1991 SCMR 1608).
7. Conversely the learned counsel for the-complainant/respondent No. 2 has submitted that trial Court has conducted the preliminary inquiry as stipulated under Section 202 Cr.P.C., in accordance with law and has rightly not looked into the investigations conducted by different police officers; that the complaint had been find having been aggrieved of the investigations conducted by different police officers, as such there was no question of either relying upon the said investigations or making a reference to said investigations, that the investigating officers could give evidence only about the opinion they had formed consequent upon the investigation that they had conducted and their evidence would be in admissible while conducting inquiry under Section 202 Cr.P.C. In support of his contention he relied upon Muhammad Ashraf and 2 others v. The State (1994 SCMR 688), Mushtaq Ahmad v. Muhammad Saleem & 2 others (1995 P.Cr.LJ 1900-Lahore), Mukhtar Ahmad v. Muhammad Khurshid Karrial & another (1991 P.Cr.LJ Note 81- Lahore), Muhammad Saeed & 3 others v. The State & another (PLD 1984 Lahore 323), Zahid Khalil v. Wajid Ali and another (1990 PCr.LJ 713-Lahore) and Muhammad Ibrahim v. Muhammad Hanif & others (1983 PCr.LJ 1051).
8. The stand of the learned counsel for the petitioners is that looking at the provisions of Section 202 Cr.P.C, from all angles, in the event of an enquiry, the person conducting the enquiry should not only record the evidence of witnesses produced by the complainant, but should also examine the Investigating Officers, or in the alternative, call for and peruse the Zimneis, with his assistance, to enquire into the reasons and circumstances which may have weighed with him in holding some of the accused as innocent and relies upon authority reported in PLD 1986 Lahore 256. The view expressed in the authority referred above, runs contrary to the provisions of Section 202 Cr.P.C., which enjoins upon the Court holding enquiry to record evidence of the witnesses produced and then to form its own opinion under Section 203 Cr.P.C, regarding prima facie guilt of the person complained of. There also does not appear any logic in examining the Investigating Officer or perusing the Ziminies as private complaint is usually preferred having felt aggrieved of the hostile attitude of the police. Thus non-examining of Investigating Officer/s by trial Court, in the instant case, did not amount to any illegality. The grievance of the petitioners is clearly without substance.
The Investigating Officers could give evidence about the opinion they had formed consequent upon the investigations that they had conducted. That being so, their evidence would have been inadmissible, as held by the apex Court in Muhammad Ashraf and two others v. The 'State and another (1994 SCMR 688). Again an enquiry under Section 202 Cr.P.C, is not a regular trial or a full dress rehearsal for trial, for adjudging guilt or otherwise of person complained against but only an enquiry for finding out as to whether there was sufficient evidence to put person complained against on trial and not sufficient evidence for convicting him, as held in Muhammad Saeed and 3 others v. The State and another (PLD 1984 Lahore 323).
9. I am not inclined to agree with the learned counsel that there was not. Sufficient evidence to summon the petitioners alongwith other accused to face trial. In the instant case, complainant/respondent No. 2 not only examined him, but also brought on record the statements of 4 witnesses, including an injured eye-witness i. e. Hassan Malik, besides the medical evidence. It was not necessary for the lower Court to examine the police file before issuing process to secure presence of the petitioners. The petitioners, can if so advised, produce their evidence in defence during trial.
10. There is a marked distinction as to the approach of appraisal of evidence at the time of holding of a preliminary enquiry and at the regular holding of criminal case. At the former stage, the Magistrate or the Court is not expected to examine the evidence or the case minutely, whereas at the later stage, the Magistrate or the Court is required :o appraise the evidence thoroughly and to record findings on the basis of such appraisal and that any benefit of doubt arising out of such appraisal, should be given to the accused person.
11. In view of the above discussion, the impugned order passed by the learned Additional Sessions Judge, Lahore dated 1.11.1997 does: not suffer from any illegality, infirmity and the trial Court did not act improperly. There is no merit in this revision petition which is hereby dismissed.