This is a revision petition filed by Mst. Mariam Sultana widow of Javed Iqbal presently confined at District Jail, Quetta, against the order dated 14-11-1998 whereby private complaint filed by the petitioner has been dismissed. Briefly stated the facts of the case are that a private complaint has been filed by the petitioner namely Mst. Mariam Sultana against accused/respondents Muhammad Saleem, Sharafat, Shahnaz wife of Muhammad Saleem, Mir Rasool Bakhsh Rind, S.H.O. Police Station Sariab, Quetta, alleging therein that she has falsely been involved in a concocted case of murder at the behest of Muhammad Saleem and Sharafat by Mr. Rasool Bakhsh Rind, I.P./S.H.O. Police Station Sariab, Quetta, who has conducted the investigation in partial manner and in order to oblige the main culprits certain lacunas have been left deliberately in the investigation and to make the murder case weak, she has been involved by whom initially an attempt was made to lodge report regarding missing of her husband namely Javed lqbal who was subsequently found dead and his dead body was recovered at the pointation of accused persons namely Muhammad Saleem and Sharafat. In this regard accused namely Muhammad Saleem has got recorded his confessional statement soon after the occurrence implicating the petitioner in the commission of alleged offence by assigning her the role of abetment and according to him the murder was committed at her behest as accused Sharafat had developed illicit relations with her, and thus, Javed lqbal, the husband of complainant was done to death. A case was accordingly got registered under section 302/109/34, P.P.C. Against Muhammad Saleem, Sharafat and Mst. Mariam Sultana (petitioner). As mentioned earlier the private complaint has been dismissed by learned Additional Sessions Judge Vth, Quetta, vide order dated 14-11-1998 and relevant portion whereof is reproduced hereinbelow for ready reference:-- "F.I.R. No,175 of 1998 has been lodged against the accused Saleem, Sharafat and complainant. The counsel for the complainant contended that the challan under section 173, Cr.P.C. Is ripe for submission before the competent Court for trial. Prima facie there are no grounds to summon the respondents. The Court is not empowered to order for re-investigation of the case. Being a Sessions Court this Court is not competent to act under the provisions of section 193, Cr.P.C. Re- investigation will prima facie destroy the challan case. The form of the complaint in its shape does not attract the provisions of Cr.P.C. The present complaint is mere an application for re- investigation of the case. The above observations do not prejudice the case F.I.R.No,175 of 1998 and case of the complainant accused. In the result. The complaint is accordingly dismissed. File be consigned to record after completion."
3. It is mainly contended by Mrs. Lqbal Bano, Advocate on behalf of Mst. Mariam Sultana that the private complaint could not have been dismissed in view of evidence as led by the complainant before the learned Judicial Magistrate by whom enquiry was conducted at the direction of learned Additional Sessions Judge Vth, Quetta. It is next contended that the evidence has not been examined and the complaint has been dismissed in violation of the prescribed procedure as enumerated in sections 200 to 204, Cr.P.C. It is urged with vehemence that submission of Police Challan would have no bearing on the private complaint which should have been disposed of in accordance with law and on the basis of its own merits. It is pointed out that a poor woman has been involved falsely by Rasool Bakhsh Rind, S.H.O., Police Station Sariab, without any incriminating material. In order to substantiate the partial investigation got conducted by Mir Rasool Bakhsh Rind it is pointed out that in order to provide undue advantage to accused Muhammad Saleem, his confessional statement was got recorded in a hurry and subsequently he was sent to judicial custody and the crime weapon i,e, Chhuri could not be recovered from Sharafat while he remained under custody in police for more than 7 days.
4. Mr. Imran-ul-Haque, Advocate appeared on behalf of State and contended that the prescribed procedure as enumerated in sections 200 to 204, Cr.P.C. Should have been followed which could not be done for the reasons best known to the learned Additional Sessions Judge, Vth, Quetta. It is further argued that the learned Additional Sessions Judge, Vth, Quetta, may be directed to act in accordance with law and the report of Judicial Magistrate should be considered. It is, however, pointed out that challan of the case has already been submitted and in case the complainant feels that she has been falsely involved the remedy as provided under section 265-K, Cr.P.C. Could be availed.
5. I have carefully examined the respective contentions as agitated on behalf of petitioner and for State in the light of relevant provisions of law and record of the case. It is worth mentioning that at first instance notice was served upon the accused/respondents to procure their attendance but subsequently it was felt that since the complaint has been dismissed at initial stage without issuance of process to the accused/respondents, as such it would be not necessary to afford them an opportunity of hearing which would be provided by the learned Additional Sessions Judge Vth, Quetta, at appropriate stage if circumstances so justify. A careful scrutiny of entire record would reveal that in fact this complaint should have been filed in the Court of learned Magistrate in view of the provisions as contained in section 190(1), Cr.P.C. And by whom it was to be referred to the learned Sessions Judge in view of the provisions as contained in section 190(3), Cr.P.C. As the alleged offence was exclusively triable by learned Sessions Judge. It is to be noted that "a Sessions Court cannot take cognizance of a complaint filed directly before it which should first be filed before a Magistrate having territorial jurisdiction in the matter so that he can take cognizance under section 190(3), Cr.P.C. Not for commencing the trial but in order to ascertain as to whether the case is one which is required to be sent for trial to the Court of Session or is one which he can proceed to try himself. Where a private complaint under section 302, P.P.C. Is filed directly before the Sessions Judge he should return it for presentation to a Magistrate" (1984 PCr.LJ 1373). He may take cognizance on the report of a Magistrate under section 202 (PLD. 1984 SC 29. The complaint file by Mst. Mariam Sultana before learned Sessions Judge should have been referred to a Magistrate for the purpose of cognizance as enumerated under section 190(3), Cr.P.C. Which could not be done but it was referred to learned Additional Sessions Judge Vth, Quetta, who sent it for further enquiry to Judicial Magistrate under section 202, Cr.P.C. And the procedure so adopted was not strictly in accordance with law but since no prejudice whatsoever has been caused to anyone, therefore, the said irregularity can be ignored. The report of Judicial Magistrate has been examined with care and caution which corroborates the version of complainant as per conclusion derived by the learned Magistrate. A thorough scrutiny of the impugned order dated 14-11-1998 would reveal that the learned Additional Sessions Judge Vth, Quetta, has referred the enquiry report got conducted by him and did not disagree with it but the complaint has been dismissed mainly for the reasons that since challan of the case wherein the petitioner has been shown as accused was filed as such it was beyond the competency of the learned Court to order for re-investigation of the case. It also prevailed upon the learned Sessions Judge Vth, Quetta, that "being a Sessions Court this Court is not competent to act under the provisions of section 193, Cr.P.C. Re-investigation prima facie destroys the challaned case". The abovementioned findings are neither in consonance with law nor appeal to logic. It is to be noted that Police report which is required to be filed under section 173, Cr.P.C. Is different to that of private complaint and it is not interchangeable. There is no cavil to the proposition that a complaint cannot be said to have been legally disposed of by taking no action thereon in view of the Police report and making no order thereon or by promptly passing orders on it without examining the complainant and without following the procedure laid down (AIR 1929 Mad. 849, PLD 1983 SC 497, PLD 1983 FSC 497). It is worth mentioning that the provisions as contained in section 203, Cr.P.C. Are free from any ambiguity and the learned trial Court had to only consider the statements got recorded in support of complaint or the enquiry report got conducted by him but on the contrary the learned Additional Sessions Judge Vth, Quetta, had dismissed the complaint merely on the ground that it would destroy the prosecution case since challan has been submitted which is not tenable under law. In this regard I am fortified by the dictum laid down in 1984 PCr.LJ (Kar.) 2546. I further find support from 1983 PCr.LJ 1051 and relevant portion whereof is reproduced hereinbelow for ready reference which would make the position crystal clear:-- "The plea that while summoning an accused in a complaint, the opinion of the police recorded during investigation should not be ignored rather be given weight so that unscrupulous complainants may not feel free to involve innocent persons in criminal litigation thereby forcing them to undergo rigours of criminal trial, cannot be accepted as the same has neither the support of any authority nor the scheme of the Criminal Procedure Code allows the adoption of the course canvassed by the learned counsel. In Fateh Sher v. Khan Yasin Khan PLD 1959 Lah. 660 it was observed that 'The Magistrate dismissing a complaint under section 203, Cr.P.C. Cannot possibly look into reports submitted under section 174 or section 176, Cr.P.C. Nor can he dismiss the complaint on the basis of such a report: 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'. It is the criminal Court itself which has to form an opinion on the basis of material produced before it, on the question whether the allegations made prima facie constitute an offence and as such furnish sufficient ground for proceedings against the accused. The other mode to ask the Court to take cognizance of an offence is by moving a complaint. This mode cannot be rendered ineffective because of the fact that Police during investigation was not able to collect evidence against an accused or otherwise was of the opinion that allegations made are not worthy of credence. As regards the plea that innocent persons should not be made to face the rigours of a criminal trial, it will be seen that the Legislature has made adequate provisions for curbing frivolous, vexatious or malicious complaints. In this connection section 211, Cr.P.C. May be referred. It is also open to the accused who is summoned, to show to the Court that he has been summoned without any reasonable cause or on the basis of insufficient material as he can seek dismissal of the complaint under section 203, Cr.P.C. Even at later stage of the trial he can make out a case of acquittal under section 265-K, Cr.P.C. Moreover, in case he is able to establish that the proceedings initiated against him were frivolous, unwarranted or mala fide, he can claim compensation under section 250, Cr.P.C. Thus, sufficient provisions have been made to safeguard the interest of the person proceeded against without reasonable cause. I am, therefore, of the view that by taking cognizance of the offence on a complaint, neither the provisions contained in sections 154 to 176 of the Cr.P.C. Are rendered nugatory nor the interest of justice, in any way, suffers."
6. It also prevailed upon the learned Court that being Sessions Court in view of provisions as contained in section 193, Cr.P.C. The question of reinvestigation cannot be dealt with being out of the purview which seems to be a result of some confusion or misunderstanding. It is well-settled by now that "section 193 imposes an embargo upon a Court of Session to take cognizance of any offence unless the accused has been sent to such Court of Session by a Magistrate duly empowered in this behalf, 1980 PCr.LJ 500. I am conscious of the fact that an enquiry report got conducted by Magistrate is not binding on the Sessions Judge and he may take any view as may be deemed fit and proper in accordance with law but such report should be considered either way to decide as to whether process to procure the attendance of accused/respondent should be issued or not? 1988 PCr.LJ 2169; 1983 PCr.LJ 2241 and 1982 PCr.LJ 498 but in the case in hand the learned Additional Sessions Judge Vth, Quetta, has discussed the entire report which supports and corroborates the version of petitioner but amazingly the complaint has been dismissed on hypertechnical basis. As mentioned earlier the submission of challan would have no bearing on this complaint which is required to be disposed of in accordance with law and the procedure as enumerated in sections 200 to 204, Cr.P.C.
7. In the light of what has been stated above the impugned order dated 14-11-1998 passed by learned Additional Sessions Judge Vth, Quetta is hereby set aside and case is remanded back to learned Additional Sessions Judge Vth, Quetta, for further enquiry in accordance with the procedure as enumerated in section 203, Cr.P.C. The learned trial Court may exercise its discretion without being influenced from the observation made hereinabove but the evidence as led by the petitioner and enquiry report should be reexamined in depth and appropriate order be passed regarding the private complaint filed by Mst. Mariam Sultana. It is pertinent to mention here that murder case got lodged vide F.I.R. No,175 of 1998 and challan submitted which is presently pending trial before learned Additional Sessions Judge-I, Quetta, is hereby transferred to learned Additional Sessions Judge Vth, Quetta, in order to avoid the possibility of any conflicting view and it was also be in the interest of justice that both the matters should be dealt with by one forum. It is also to be noted that direction was issued vide this Court order dated 16-12-1998 that no further proceedings shall be commenced against Mst. Mariam Sultana (petitioner) in case got lodged against her by Mir Rasool Baldish Rind, I.P./S.H.O. Of Sariab Police Station, vide F.I.R. No,175 of 1998 under section 302/109/34, P.P.C. Is vacated and the learned Additional Sessions Judge Vth, Quetta, is directed to commence with the trial and dispose of the direct complaint filed by Mst. Mariam Sultana (petitioner) in accordance with law. The observations made hereinabove are tentative in nature and shall not affect the merits of the case.