' FAZAL-UR-REHMAN, J.--- This Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan has been filed by the petitioner challenging the validity and legality of the order, dated 26th May, 1999 passed by the learned Sessions Judge, Khuzdar in Criminal Revision No,4 of 1999 whereby, the order of dismissal, dated 15-1-1999, passed by Judicial Magistrate, Khuzdar was set aside in respect of complaint filed by the respondent No,1 and the S.H.O. Police Station City was directed to record the statements of petitioner and the witnesses and to submit supplementary challan against the perpetrator under the relevant provisions of law in the Court of competent jurisdiction within a period of 15 days from the passing of this order.
2. Brief facts of the case are that on 15-5-1998, the respondent No,1 lodged F.I.R. At City Police Station, Khuzdar regrading criminal breach of trust by driver namely Abdullah who has stated to have been, caught red-handed. It is stated that a drum containing diesel allegedly taken out from the Oil Tanker bearing No,KZ-565 belonging to respondent No,1 and driven by Abdullah recovered from the shop of the petitioner and taken into possession. On completion of usual investigation Abdullah was sent up to face his trial under section 407, P.P.C. It is stated that the petitioner was arrested but he was then released and not challaned alongwith Abdullah, Driver. It is stated that the respondent No,1 then filed a complaint under section 411, P.P.C. Read with section 9/14, Offences Against Property (Enforcement of Hudood) Ordinance in the Court of Judicial Magistrate, Khuzdar on 7-9-1998, which was sent to S.H.O. City Police Station for conducting of enquiry and report. It is further stated that the direction was not complied with by the S.H.O. And the respondent then filed another application on 22-10-1998 which was again sent to the same S.H.O. For conducting of enquiry and report and for submitting challan against the petitioner. It is further stated that the respondent No,1 filed another complaint on 11-11-1998 before the learned Judicial Magistrate, Khuzdar which was also referred to the S.H.O. City, Khuzdar for submission of report. It is submitted that a report was submitted by the S.H.O. On 19-12-1998. The learned Judicial Magistrate dismissed the complaint vide order, dated 15-1-1999. The respondent No,1 challenged this order before the learned Sessions Judge, Khuzdar in Criminal Revision No,4 of 1999 who passed the order in the manner hereinabove mentioned. This order is the subject-matter of the present Constitutional petition.
3. We have heard Mr. Ghulam Mustafa Mengal, Advocate learned counsel for the petitioner and Mr. Noor Muhammad Achakzai, Additional Adovcate-General for State while Mr. Ali Ahmed Kurd, Advocate for respondent No, 1 .
4. The main contentions put forth on behalf of the petitioner are that, "the petitioner was neither present at the time of alleged incident nor there is any incriminating evidence against him secondly, the Investigating Officer had already expressed himself that no case has been made out against the petitioner and thirdly the challan of the case has already been submitted, therefore, the submission of the supplementary challan is not warranted by law and the learned Sessions Judge was not vested with the power to make such an order". The learned Additional Advocate- General representing the State has also supported the order of Judicial Magistrate. On the other hand, learned counsel for respondent No,1 has supported the order of learned Sessions Judge, Khuzdar by stating that there was recovery of diesel from the shop of the petitioner, therefore, he was very much involved in the commission of offence and the order of learned Sessions Judge is in accordance with law. The learned Sessions Judge While allowing the revision petition filed by the respondent No,1 has expressed himself in the following terms:- "I had given my anxious consideration to the respective advancements of the learned counsels and had the advantage of going through the record of the file of learned Judicial Magistrate, whereby accused Abdullah was tried and consequently sentenced for offence under section 407, P.P.C. Vide judgment, dated 3-4-1999. The petitioner from the very beginning had been stressing through complaints and applications that on one hand the Tanker driver Abdullah had been guilty of criminal breach of trust while on taking stolen material the accused/respondent No,2 is also guilty of the offence of theft as well as dishonestly receiving the stolen material knowingly. Apart from assertions recorded in complaints, it is worth mentioning that accused Muhammad Akram in his statement recorded under section 161, Cr.P.C. During investigation of Crime No,56 of 1998 had himself admitted to have purchased the diesel from the Oil Tanker, although in good faith and from his appearance before this Court cannot be termed to be a child, as the S.H.O. Had mentioned in his report and the accused being running the affairs of the shop cannot be absolved of the liability of buying stolen material at reduced rate of the benefit to his business and the stance that his father at the specific time was not present in the shop, is immaterial. The police although investigated the crime appropriately in the initial stage but due to influence of the higher officer had not challenged the recipient of the misappropriated goods."
5. Section 203, Cr.P.C. Provides that the Court before whom a complaint is made or to whom it has been transferred, or sent, may dismiss the complaint if after considering the statement on oath (if any) of the complainant and the result of the investigation or enquiry (if any) under section 202, there is, in its judgment, no sufficient ground for proceeding by recording his reasons for doing so.
Even an order of dismissal of complaint under section 203, Cr.P.C. Is no bar to the entertainment of second complaint on the same facts.
6. It may also be pertinent to observe that 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 hearing of a criminal case. At the formal stage, the Magistrate or the Court is not expected to examine the evidence or the case minutely, whereas, at the latter stage the Magistrate or the Court is required to appraise the evidence thoroughly and to record its findings on the basis' of such appraisal and that any benefit of doubt arising out of such apprais.Al should be given to the accused person.
7. Under section 435/436, Cr.P.C., the dismissals under sections 203 and 204(3) can be reversed by the Sessions Court and or by the High Court and a "further enquiry" can be ordered. Section 436, Cr.P.C. Also visualises cases coming to the notice of the Sessions Judge "otherwise" than under section 435, Cr.P.C. It may also be noted that what 202, Cr.P.C. Permits can undoubtedly be done by the Sessions Court under section 436, Cr.P.C.
8. It may also be pointed out that opinion of the Investigating Officer is not binding on Court nor the finding of Investigating Officer is a legal evidence. The Court can disagree with the police and can ask for further enquiry or investigation. It is for the Court to accept the opinion or otherwise taking in view the attending facts and circumstances of the case. However, without making any observation on the merits of the case or going into details, we are of the view that the learned Judicial Magistrate has not fully appreciated the facts of the version given in the F.I.R., statements and subsequent complaints made by the respondent No,1
9. On submission of report by the police, the learned Judicial Magistrate, Khuzdar shall deal with the same in accordance with law without F being influenced by any observations made by the Sessions Court or by this Court in respect of the merits of the case.
10. In view of the observations made above, we see no merit in the G present petition which is accordingly dismissed.