Through this writ petition, an order dated 25-4-2002 passed by the learned Judge Anti-Terrorist Court, Faisalabad,. is questioned. The learned Judge refused to entertain the complaint of the petitioner while observing that the matter was one to be taken cognizance by the plenary Court.
2. A copy of the complaint which is detailed and which speaks of arson, damage to property and poisoning of cattle etc. at the end of the respondents, is also placed on record. This is seen.
3. The learned Judge, Anti-Terrorist Court initially referred the matter under section 202, Cr.P.C. to Mr. Suleman Baig, learned Judicial Magistrate, Toba Tek Singh for conducting an inquiry. The learned Judicial Magistrate conducted the inquiry and returned the file to the learned Judge, Anti- Terrorist Court, vide his orders dated 28-3-2002, while observing:-- "Preliminary statements of witnesses prima facie corroborate the contents of complaint and at this moment it appears that this matter requires evidence. It seems to be a matter of serious nature.
Thus the complaint it capable of being tried with under sections mentioned therein.
With these observations, the report is hereby submitted to the Hon'ble Judge Anti-Terrorist Court, Faisalabad (Punjab) for the already fixed date i,e, 13-4-2002."
4. When the learned Anti-Terrorist Court took up the matter, the complainant alone was present for obvious reason that the complainant had not so far been entertained and only arguments were addressed. After which the learned Anti-Terrorist Court passed the following orders:-- "From the perusal of the record it evidences that the place of incident is between Killa 20/21, Sq.
No,72 of Chak No,324. It was not any Abadi of the Chak, but the field. The allegation is that all the accused remained with lethal weapon. The MLC shows that son of the complainant Shamasal Haq received an injury with blunt wapon and the armed was broken. In view of these attending circumstances; I do' not think that there is encompassed any act of terrorism within the definition of section 6 of ATA 1997. The case registered on behalf of the complainant side is already pending in the regular Court. Much trumpeted fear in the society appears to be a deliberate efforts'to attract the jurisdiction of this Court. These assertions are not supported by the attending circumstances, therefore, while observing that this case is amenable to the jurisdiction of the regular Court, I send this file to the Court of. Ilaqa Judicial Magistrate, Police Station City Toba Tek Singh."
5. Section 202 of the Cr.P.C. reads as follows:-- Postponement for issue of process:---(1) Any Court, on receipt of a complaint of a offence of which it is authorised to take cognizance, or which has been sent to it under section 190, subsection (3), or transferred to it under section 191 or section 192, may, if it thinks fit, for reasons to be recorded, postpone the issue of process for completing the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by (any Justice of the Peace, or by) a Police Office, or by such to persons at it thinks, fit for the purpose of ascertaining the truth or falsehood of the complaint: Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200.
(2)A Court of Session may, instead of directing a investigation under the provisions of subsection (1), direct the investigation to be made by, any Magistrate (or Justice of the Peace) subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint.
(3)If any inquiry or investigation under this section is made by a person not being a Magistrate (or Justice of the Peace) or a Police Officer such person shall exercise all the powers, conferred by this Code on an officer-in-charge of a police station, except that he shall not have power to arrest without warrant.
(4)Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witnesses on oath."
6. Whereas section 203 of the Cr.P.C. states:-- "Dismissal of complaints.---(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 inquiry (if any) under section 202 there is in his judgment no sufficient ground for proceedings. In such cases she shall briefly record his reasons for so doing."
7. As is evident, the order of the learned Anti-Terrorist Court makes no reference to the report and finding of the learned Judicial Magistrate nor does it speak of the legal requirement whether this report was at all considered by him. Otherwise, his order should have so reflected. The learned Anti-Terrorist Court has not even chosen to make any references to the facts reflected in the complaint itself, which makes serious allegations of arson, damage to property. rioting, use of deadly weapons etc., nor has he taken the trouble of recording the statement of the complainant for satisfying us judicial conscience about the happening and about the truth of the assertions made in the complaint itself.
8. The order, therefore, inter ralia violates the mandatory provisions of section 203 of the Cr.P.C. The tendency of referring the matter for inquiry to a Judicial Magistrate and of ignoring the report altogether when it is returned, is to be deprecated. Such a report cannot be thrown away lightly unless there are circumstances floating on the record to suggest otherwise and these are to be brought in juxtaposition with the report for rendering such a report of no value.
9. The order, therefore, of the learned Judge of the Anti-Terrorist Court was passed perfunctorily and as it was not a speaking order in view of the observations referred to above and the provisions of the code itself, it is set aside.
10.Of course, the respondents are not before this Court and they were never not even present before the Trial Court as they were never summoned. The present stage of the case is of inquiry and investigation and the respondents are only to be called if the complaint is not dismissed and if a case is made out, therefore, their presence before this Court was not essential.
11. The case consequently is remitted to the learned Anti-Terrorist Court with directions to adhere to the law, hear the complainant and then proceed to deal with the fate of the complaint after making reference to the report and the factual aspects which appear on record before it. The complainant is directed to appear before the learned Anti-Terrorist Court on the 15th of July, 2002.