Muhammad Akbar Ali vs ASJ & others
This constitutional petition challenges an order passed by the Additional Sessions Judge, Zafarwal, which set aside a Magistrate's order summoning respondents in a private complaint. The core legal question was whether the Revisional Court erred in setting aside the summoning order by considering extraneous material not before the Magistrate. The High Court held that the Revisional Court exceeded its jurisdiction by considering evidence (a prior FIR) that was not part of the record when the summoning order was passed. The Court emphasized that for the issuance of process under Section 204 of the Code of Criminal Procedure 1898, the Magistrate is only required to determine if there are sufficient grounds to proceed, not to establish guilt or provide detailed reasons. The Court further clarified that a summoning order is not a final judgment under Section 369 of the Code of Criminal Procedure 1898 and can be revisited. The High Court set aside the Revisional Court's order, restoring the Magistrate's summoning order, and directed the trial court to proceed with the complaint.
- Is a summoning order passed under Section 204 of the Code of Criminal Procedure 1898 considered a final judgment under Section 369 of the Code of Criminal Procedure 1898?
- Can a Revisional Court consider evidence not available to the trial court when reviewing a summoning order?
- What is the standard of proof required for a Magistrate to issue a summoning order under Section 204 of the Code of Criminal Procedure 1898?
- What is the appropriate remedy for an accused who believes there is no chance of conviction in a private complaint?
- Section 452, Pakistan Penal Code 1860
- Section 506 (ii), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 202, Code of Criminal Procedure 1898
- Section 204, Code of Criminal Procedure 1898
- Section 249-A, Code of Criminal Procedure 1898
- Section 369, Code of Criminal Procedure 1898
Syed Shahbaz Ali Rizvi, J: Through this petition, petitioner assails the order dated 05.05.2023, passed by the learned Additional Sessions Judge, Zafarwal, upon criminal revision instituted by respondents No.2 & 3 by virtue of which the order passed by the learned Magistrate regarding the summoning of respondents No.2 & 3 in connection with a private complaint, instituted by the present petitioner stands set aside.
2. Heard. Record perused.
3. Perusal of the summoning order dated 02.07.2021, passed by learned Magistrate Section 30, Zafarwal reveals that subject complaint carries allegation against the respondents with regard to the perpetration of offences punishable under sections 452, 506 (ii) PPC read with section 34 PPC.
The cursory statements of the witnesses recorded and the documents produced during the preliminary inquiry under section 202 Cr.P.C prima facie, support the narration available in the private complaint. There remains no doubt about the proposition that for the purpose of issuance of process to the accused under section 204 Cr.P.C, evidence sufficient to establish guilt of the accused is not required, the learned Court is desired by Law only to look for the availability of sufficient ground to proceed further with the complaint that requires tentative assessment of the evidence at hand till then only and sufficiency or insufficiency of the evidence available for the issuance of process is for the Court seized with the matter to decide. The Court even is not required to state detailed reasons in support of its order. Perusal of the order, passed by the learned Revisional Court impugned through this petition reveals that the learned Additional Sessions Judge has travelled beyond his limit while considering the earlier registration of an F.I.R No. 90/2018 at the instance of the accused/respondent No.2 that was not the part of the record before the learned summoning court when the order under revision was passed. The appropriate course for the accused/respondents in the situation was to approach the learned trial Court by moving application under section 249-A Cr.P.C if they consider that in view of the facts with them, there was no chance of their conviction and that further proceedings in the trial would be a futile exercise. It is also relevant to mention here that the summoning order passed under section 204 Cr.P.C is not a judgment or final order as contemplated by section 369 Cr.P.C and the same can be reconsidered, revisited or recalled at any stage. Similarly, the learned revisional court while determining the propriety or legality of the subject summoning order could only look into the material or evidence available to the learned court below when the order was passed and not beyond. This Court is of the opinion that the reasons given by the learned Magistrate were sufficient to justify the issuance of process under section 204 Cr.P.C, hence, this petition is allowed and the order passed by the learned Additional Sessions Judge challenged by the petitioner/complainant is set aside. The learned trial Court shall proceed further with the private complaint instituted by the petitioner/complainant in accordance with law.