1. ' MUHAMMAD ROSHAN ESSA NI. J.---By this criminal revision application, the applicant has sought the following relief:- ' It is, therefore, respectfully prays that this Hon'ble Court would be pleased to call for the record of Complaint No,71 of 1999 pending in Special Banking (Offence) Sindh, Karachi and set aside the order dated 17-94999 and direct the Special Banking Court (Offences) Sindh to register the complaint against him."
2. The brief facts of the case are that the applicant/complainant filed a direct complaint under sections 409, 406, 109 read with section 34, P.P.C. Against the respondents/accused Nos.!' to 3 before the Special Court (Offences in Banks), Sindh, Karachi. The learned Presiding Officer of the Court after recording the statement of the complainant under section 200, Cr.P.C. Ordered process against the respondents/accused Nos. 1 and 2 namely, Ahmed Ibrahim and Naeem Butt under section 204, Cr.P.C. And dismissed the complaint against respondent/accused No, 3 Tariq Malik under section 203, Cr.P.C.
3. ' We have heard Mr. Arif Hussain Khilji learned counsel appearing on behalf of the applicant and Mr. Khursheed Hashmi learned Deputy Attorney-General on behalf of the State.
4. ' It is contended by the learned counsel appearing on behalf of the applicant that the trial Court without recording the evidence as provided under section 202, Cr.P.C. Passed the impugned order therefore the same is nullity in law and liable to be set aside.
5. ' Learned Deputy Attorney-General appearing on behalf of the State conceded to the prayer of the learned counsel appearing on behalf of the applicant.
6. ' It would be pertinent to reproduce hereinbelow the impugned order in extenso:-- "This is a direct complaint under sections 409/406/109 and 34, P.P.C. It is filed by complainant M/s. Allied Bank Ltd. On 14-4-1998 against Ahmed Ebrahim, Proprietor M/s. Zee International, Naeem Butt and Tariq Malik Pro. Sardar Enterprises.
7. ' In brief the allegation in the complaint is that financial facilities were granted to accused No,1 who as security for repayment thereof pledged the scrapship "Star Dubai". According to the complaint accused No,1 in connivance with accused Nos.2 and 3 had taken out 2300 tons of scrap without payment of amount of it. Accused No,1 had sold scrap to accused No,2 who had also created charge on the plot where the scrap was lying at Gadani.
8. ' Accused Tariq Malik was Mucaddam. It was his duty to keep watch over the scrap and not allow its removal without delivery order of the complainant. He has contended that he has been keeping proper watch thereon and had as early as 15-11-1997 reported to S.H.O. Gadani Police Station about the theft of the scrap. He has produced photocopy of such report which was entered at Serial No,13 of Roznamcha dated 15-11-1997 of Police Station Gadani. He therefore cannot be held liable for the acts of accused No,1 and 2.
9. ' I, therefore, dismiss the complaint so far as accused No,3 Tariq Malik is concerned under section 203, Cr.P.C. The complaint be registered against accused Nos.1 and 2 Ahmed Ibrahim Proprietor, M/s. Zee International and Naeem Butt under sections 409/406/109/34, P.P.C. Accused Naeem Butt is present. He is directed to furnish surety in the sum of Rs,500,000 to the satisfaction of Registrar of this Court. NBW against accused Ahmed Ibrahim be issued. Accused Naeem Butt is directed to attend on 15-10-1999.
10. ANNO UNCED IN OPEN COURT ' Given under my hand and the seal of the Court, this 17th day of September, 1999.
11. (Sd.) English (Justice (Recd.) Syed Abdul Rehman), Presiding Officer, Special Court (Offences in Banks), Sindh, Karachi."
12. (Underlining is ours)
13. The procedure for dealing with the complaint is laid dowr in Chapter XVI of the Code of Criminal Procedure, 1898. Section ZOO, Cr.P.C. Lays down that the Court taking cognizance of an offence on receiving a complaint, and after examining the complainant upon oath if is satisfied that a prima facie case is made out the Court is competent to issue process under section 204, Cr.P.C. Against the accused, and if Court finds that no prima facie case has been made out it can dismiss the complaint under section 203, Cr.P.C. A preliminary inquiry could only be ordered when Court after recording the statement of complainant upon oath deems it necessary, in order to ascertain the truth or falsehood of the allegations made in the complaint can postpone issuance of process and hold itself or direct for an inquiry or investigation in the matter under section 202, Cr.P.C. The Court if after inquiry is satisfied that a prima facie case has been made out against the accused, it can order for process and if finds no prima facie case has been made out the Court can dismiss the complaint. It is the sole satisfaction of the Court taking cognizance of the matter upon the complaint and it is not mandatory for the Court to order for inquiry under section 202, Cr.P.C.
14. However Courts usually hold preliminary enquiry as a matter of abundant caution.
15. ' The perusal of the impugned order reproduced hereinabove shows that the respondent/accused Tariq Malik who was nominated as accused it the complaint appeared before the trial Court at preliminary stage of the case and participated in the proceedings before the trial Court with the result complaint was dismissed against him and process Was ordered against rest of the respondents/accused. It is well-settled that at the preliminary stage of the case/preliminary inquiry the accused has no locus standi to participate in the proceedings. The procedure adopted by the trial Court allowing the accused to participate in the proceedings at preliminary stage of the case was contrary to law laid down by the superior Courts time and again.
16. ' Thus looking towards the peculiar facts and circumstances of the case we are inclined to set aside the impugned order to the extent of dismissal of complaint against respondent/accused No,3 Tariq Malik and remand the matter to the trial Court with direction that the applicant/complainant should be permitted to adduce further evidence under section 202, Cr.P.C.
17. In support of the allegations made in the complaint and the trial Court after recording statements of the witnesses produced by the complainant under section 202, Cr.P.C. Pass appropriate order in the matter according to law.
18. ' In terms stated hereinabove the present criminal revision application stands disposed of.