MUHAMMAD ASGHAR vs ADDITIONAL SESSIONS JUDGE and otherss
This criminal petition challenged an order passed by the Additional Sessions Judge, which set aside a Magistrate's summoning order and remanded the case for a fresh decision. The complainant had filed a complaint against ten persons for various offences, alleging theft, crop damage, and criminal intimidation. The Magistrate summoned all ten accused without critically evaluating the divergent statements of the prosecution witnesses. The Revisional Court set aside the summoning order and remanded the matter. The Lahore High Court held that while a Magistrate is not required to enter into a deeper appreciation of evidence at the summoning stage, it remains the mandatory duty of the Court to apply its mind to the available evidence to satisfy itself that a prima facie case is made out before issuing process, rather than blindly summoning accused persons for all offences alleged in the complaint. The High Court upheld the remand order but modified it by holding that the respondents need not appear before the trial court until fresh summoning.
- Is a Magistrate required to apply judicial mind to the available evidence before summoning an accused on a private complaint?
- Can an accused person be summoned for all offences mentioned on the face of a complaint without verifying them from witness statements?
- Whether an appellate or revisional court can remand a case for a fresh decision when the initial summoning order lacks proper application of mind?
- Section 440, Pakistan Penal Code 1860
- Section 379, Pakistan Penal Code 1860
- Section 506, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
' MUHAMMAD FARRUKH MAHMUD, The relevant facts leading to this petition are that Muhammad Asghar filed a complaint against ten persons for offences under sections 440/379/506/148/149, P . P . C .
2. Briefly, it was alleged in the complaint that the accused stole Shesham trees belonging to the complainant, caused damage to his mustard crop and threatened the complainant's wife with dire consequences in case the matter was reported to the police. It was further alleged that the wife of the complainant was manhandled by the accused.
3. In support of the complaint the petitioner appeared himself and his statement was recorded as P.W.1. The petitioner's wife Mst. Sughran Bibi appeared as P.W.2 and made a general statement that a dispute over Watt existed between the respondents-accused and the complainant and that she was manhandled by the accused. She stated about removal of mustard crop by the accused but never stated about the theft of the trees Khalid Pervaiz appeared as P.W.3 and did not state a word about manhandling of complainant's wife. Even then the Magistrate vide order, dated 28-6-2006 summoned ten accused to face trial for offences mentioned on the face of the complaint i,e, under sections 440/379/506/ 148/149, P.P.C. Feeling aggrieved the respondents-accused filed a revision which was decided vide order dated 7-3-2006 by Mr. Ikram Ullah, learned Additional Sessions Judge, Chishtian. The learned Additional Sessions Judge set aside the order dated 28-6-2005 whereby the respondents-accused were summoned and remanded the case to the learned trial Court for fresh decision. The parties were also directed to appear before the learned trial Court on 17-3-2006. Hence, this petition.
4. The learned counsel for the petitioner has argued that for summoning the accused it was not necessary for the learned trial Court to enter into deeper appreciation of the evidence and the learned trial Court could proceed against the respondents without giving reasons. Reliance is placed on Maqbool Ahmad and another v. The State and another 1997 PCr.LJ 1074.
5. I have heard the learned counsel for the petitioner and have also gone through the available record of the case.
6. It is true that in case sufficient grounds exist the Magistrate could proceed against the respondents and summon them but it does not mean that the learned trial Court should summon the respondents-accused without looking into the available evidence. It is the duty of the Court to go through the evidence, apply its mind and then proceed against the respondents in case any offence is made out. The Court is not supposed to summon the accused for all the offences mentioned on the face of the complaint without application of mind. In the instant case the statements of the P,Ws. Were divergent and in any case no offence under sections 148/149, P.V.C.
Was made out. Even then the learned trial Court summoned ten accused to face trial. It was observed by the Honourable Supreme Court in the case of Shamim v. The State and Muhammad Bashir PLD 1966 SC 178:-- "Mr. Rao Muhammad Ashfaq Khan who appeared for the appellant before us invited our attention to Hashim Haji Sharif v. Mir Khan Jan PLD 1950 Bal.
7. In that case the learned Judicial Commissioner, Quetta, had pointed out that one of the main objects of section 200, Criminal Procedure Code, was to protect the public against false. Frivolous or vexatious complaints filed against them in criminal Courts and that Magistrates must not lightly accept written complaints and proceed to issue processes until they had thoroughly sifted the allegations made against the accused and were satisfied that a prima facie case had been made out against those who were accused of criminal offences. We have no hesitation in endorsing these observations."
7. In the above noted circumstances, the learned Additional Sessions Judge rightly remanded the case to the learned trial Court to re-appreciate the evidence. However, the learned Additional Sessions Judge wrongly directed the respondents-accused to appear before the learned trial Court, as once the order of summoning was set aside then the respondents could not be termed as accused and their presence was not required before the learned trial Court until and unless they were summoned to face trial. Hence, the order of the learned Additional Sessions Judge is modified to the extent that the respondents-accused in the complaint need not appear before the learned trial Court until and unless summoned by it. So far as the present petition is concerned the order is devoid of any merit and is dismissed.