' This petition under section 561-A, Cr. P. C. Arises under the following circumstances :
1. Respondent Abdul Ghani lodged report at Tandwani Police Station, District Jacobabad on 12-1- 1974 that in presence of Abdul Ghani himself and P. W. Aali, Arbab was fired at and killed by four persons, namely, Faiz Muhammad, Ghulam Kadir, Imam Bux and Liaquat. The Police investigated the case and found on the evidence that the murder in question had been committed by first informant Abdul Ghani and his witness Aali. The Police, therefore, challaned Abdul Ghani and Aali for the murder of Arbab. Abdul Ghani then filed a direct complaint in respect of this murder against the above-named four accused in the Court of Resident Magistrate, Kandhkot. The Magistrate ordered preliminary enquiry under section 202, Cr. P. C. The learned Magistrate recorded the statements of the witnesses, perused the 164, Cr. P. C. Statements, examined the Police papers and then dismissed the complaint under section 203, Cr. P. C. Against the order of dismissal respondent Abdul Ghani preferred a revision application in the Court of Session at Jacobabad. The learned Additional Sessions Judge found that there were certain defects in the procedure adopted by the Magistrate, for instance he considered, it was wrong for the Magistrate to issue notice to the accused persons to participate in the enquiry through their Advocate Mr. Ghulam Yasin Malik. That it was also not proper for the Magistrate to have referred to the Police papers and section 164, Cr. P.
C. Statements as these were extraneous for the purpose of an enquiry under section 202, Cr. P. C.
Before the issue of process in the case. It appears that two decisions of this Court, namely, Wahid Bux Shah v. The State (1) and Khadim Hussain v. The State (2) had been quoted on these points before the learned Additional Sessions Judge. The learned Additional Sessions Judge while considering the procedure adopted to be defective, directed further enquiry after setting aside the order of dismissal and he ordered the case to be sent to the Sessions Court for being proceeded with according to law. Subsequently, it occurred to the Additional Sessions Judge that the Sessions Court had no original jurisdiction, and could not take cognizance of the offence unless the complaint had been forwarded to the Sessions Court by a Magisrate. He, therefore in exercise of review powers revised the order and directed that the complaint be forwarded to Resident Magistrate, Kandhkot for further proceedings according to law.
2. It has been argued by Mr. M. H. Shah that this order of setting aside the dismissal and remanding the case has not been passed on merits but it is the result of certain procedural defects observed by the learned Additional Sessions Judge. It is true that during a preliminary enquiry it is not desirable that the accused should participate in the enquiry and be represented by a lawyer who should cross-examine the witnesses, as by adopting that procedure the very purpose behind a preliminary enquiry would be lost. It may also not be considered as a desirable procedure to examine, documents produced at the instance of the accused during a preliminary, enquiry for similar reasons, as held in the decisions cited before the learned Additional Sessions Judge by the counsel on behalf of respondent Abdul A Ghani. However, any such irregularity would not be considered sufficient for directing a further enquiry, unless the irregularity has resulted in failure of justice. In the present case as pointed out by Mr. Muzaffar Hussain, {{FOOT NOTE}}
(1) PLD 1964 Kar. 316 (2) 1970 P Cr. L J 56 {{FOOT NOTE}} Shah the directions for further enquiry against the accused persons would result in an abuse of the process of law. The police investigation in the case appears to have been conducted under the directions of superior Police Officers and it was found by the Police that the F. I. R. Lodged by respondent Abdul Ghani against the four petitioners was false and Abdul Ghani had tried to implicate them in order to save his own skin. The result of the investigation was that Abdul Ghani and his witness Aali were responsible for the murder of Arbab. They had been challaned by the Police and were already facing trial. Under these circumstances the order dismissing the complaint of respondent Abdul Ghani filed subsequently in Court was with the purpose that no further action for lodging a false report should be taken by the police against him. The weight of evidence collected by the police went to show that the original report of Abdul Ghani was a false report and he had implicated wrong persons. Therefore, just for the sake of rectifying certain irregularities in the procedure those four accused persons could not have been subjected to any further harassm ent.
3. In the result the petition under section 561-A, Cr. P. C. Is allowed and the proceedings pending against the petitioner in respect of murder of B Arbab are hereby quashed.