MUHAMMAD IBRAHIM Versus MUHAMMAD HANIF

Briefly stated the facts forming background of the controversy raised in this Criminal Revision under section 439, Cr. P. C. are that a case under section 302, P. P. C. was registered vide F. I. R. No. 228 on 7-11-1977 against Ali Muhammad and Muhammad Ajmal on the statement of one Muhammad Ishaq with Police Station Nishatabad, District Faisalabad. On the same day, in respect of the same incident F. I. R. No. 229 was registered with the same police station on the statement of Muhammad Hanif against Muhammad Ayyub and Muhammad Ibrahim, the present petitioner. The parties gave their own version of the incident in which Muhammad Ayyub died on the side of the petitioner and Ali Muhammad died on the side of the respondent, The investigation was conducted by Muhammad Anwar Khan, the then S. H. O. who recorded the---opinion that the petitioner was innocent. The Investigation was then conducted by Zafar Abbas Shah, the then S. D. P. O. Chak Jhumra and it is stated that he also agreed with the opinion of the former Investigating Officer. On further investigation conducted by Iqrar Husain Shah D. S. P. it was recommended that the name of the petitioner be placed in column No. 2 of the challan. An incomplete challan was submitted on 11-12-1977. As P. D. S. P. was of the opinion that Muhammad Ibrahim petitioner be got discharged, the matter was referred to the Senior Superinten dent of Police. He also agreed with the P. D. S. P. and the report was lard before the District Magistrate who ultimately discharged the petitioner. Muhammad Hanif, complainant in F. I. R. No. 229, the respondent, then filed a complaint in the Court of Ilaqa Magistrate on 29-4-1918 and vide order dated 2-5-1978 the same was sent to the learned Sessions Judge for further proceedings. The complaint was then marked, to Additional Sessions Judge 1, but from his Court it was withdrawn and was sent to Additional Sessions Judge 11 as the connected challan case was pending before him. The transferee Court then vide order dated 5-6-1978 entrusted the complaint to Assistant Commissioner/Magistrate Section 30, Faisalabad, for the purpose of ascertaining in the truth or falsehood of the complaint under section 202(2), Cr. P. C. The learned Magistrate recorded the statement of the complainant and the witnesses produced before him, and on the basis of the material collected by him, he submitted his report dated 12-9-1978 recording the opinion that a prima facie case under section 302/307, P. P. C. was made out. The learned Additional Sessions Judge then vide order dated 11-10-1978 directed issuance of warrants for arrest of the petitioner and thus summoned him as an accused in the case. This order is under challenge in this revision petition on the following grounds :-

(i) the petitioner, having been found innocent during investigation conducted by three different police officers as a result of which the order of discharge was also passed, could not be summoned in the complaint on the basis of the statements of the complainant and his witnesses without looking into the record of investigation or without examining the Investigating Officers. The reasons being that the summoning of an accused person on the basis of the complaint Would give licence to complainants to implicate any innocent person, especially, those who have established their innocence during the investigation held ;

(ii) the order of summoning the petitioner as an accused has the effect of rendering the provisions of sections 154 to 173, Cr. P. C. redundant ;

(iii) the order passed under section 202(2), Cr. P. C. marking the com plaint to the Magistrate for investigation was illegal as the learned Additional Sessions Judge did not himself examine the complainant. The order passed without examination of the complainant was illegal and all the proceedings held thereafter are equally illegal ;

(iv) that the impugned order, in any case, is illegal as sufficient material was not brought on record to warrant summoning of the petitioner as an accused.

I may add at this stage, that the learned Counsel for the petitioner also argued that the complaint was directly filed in the Court of the learned Additional Sessions Judge and that as cognizance was directly taken by the Sessions Court illegally, the entire proceedings held on the complaint were illegal and without jurisdiction. This point was not, however, pressed by him when it was pointed out by the learned Counsel for the respondent that the complaint was filed before the Ilaqa Magistrate and it was the Magistrate who had taken cognizance of the complaint and had thereafter sent the complaint to the Sessions Court, as is provided by section 190(3), Cr. P. C. This question, therefore, need not be gone into, as the same does not arise in this case.

2. In respect of other contentions, the case of the learned Counsel for the respondent was that examination of the complainant is necessary if the order is passed under subsection

(1) of section 202 directing a police officer to hold an investigation or inquiry, but where a Court of Session is acting under subsection (2) for issuing direction to a Magistrate to conduct the investigation, the examination of the complainant is not necessary. He argued that in case the examination of a complainant before passing the order is necessary, then the failure to examine the complaint would amount to a mere irregularity, which is curable under section 537, Cr. P. C.

3. I have considered the respective submissions of the parties and I am of the considered view that this revision petition is without any merit and accordingly must fail. My reasons for arriving at this conclusion are as follows:

The submissions that the petitioner having been found innocent and having been discharged, could not be summoned in the complaint on the basis of the material produced, without looking into the record of the investigation or examining the Investigating Officers; that summoning of the accused who has been so discharged after thorough investigation, would render the exercise done under the provisions contained in section 154 to 173, Cr. P. C. redundant or that it will facilitate the involve ment of innocent persons in the criminal cases, have no support from any provision of law or principle of administration of criminal justice. It will be seen that in the case of cognizable offences, the agency of police comes into motion and after holding the investiga tion, the purpose of which is to collect evidence in support of the allegations contained in the report made, the matter is ultimately brought before a Court of competent jurisdiction. The Magistrate under section 173(3), Cr. P. C. may make an order for the discharge of the bon submitted by the accused to the police or pass other order as he may think fit. The order of discharge, so passed, does not bar subsequent trial of the accused. The provisions contained in sections 154 to 176 provide one of the methods for bringing culprits before a competent Court for being dealt with according to law and to be punished by the Court if proved guilty. A reference to section 190, Cr. P. C. would show that a Criminal Court can take cognizance of any offence :-(a) upon receiving a complaint of facts which constitute such offence ; (b) upon a report in writing of such facts made by any police officer, (c) upon information received from any person other than police officer, or upon his own knowledge or suspicion, that such offence has been committee. Under section 193, Cr. P. C. except as otherwise expressly provided by the Code or by any other law for the time being in force, no Court of Session take cognizance of any offence as a Court of jurisdiction unless the case has been sent to it under section 190(3) under subsection (1) original and under this subsection, a Magistrate taking cognizance of section 190 of an offence tribal exclusively by a Court of Session, shall without recording any evidence send the case to a Court of Session for trial. It is apparent that upon receipt of a complaint, a Magistrate taking cognisance of an offence triable exclusively by a Court of Session, is to send the case t that Court for trial and the Court of Session then under section 202, Cr. P. C. may either enquire into the case itself or direct an inquiry or investigation t be made by a police officer or by such other person as it thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. While acting under this subsection, no such direction is to be made unless the complainant has been examined on oath under the provisions of section 200. It is so provided in the proviso to the said subsection (1). Subsection (2) o section 202, however, provides that instead of directing an investigation under the provisions of subsection (1) a Court of Session may direct the investigation to be made by any Magistrate subordinate to it. It is, therefore, apparent that cognizance can be taken and accused can be summon either on report of the police or on a complaint filed by the complainant, where the facts complained of constitute an offence and where a prima facie case of commission of an offence by the accused has been made out. The law thus provides the remedy of approaching the Court by filing a com plaint and such remedy cannot be either refused or circumscribed on the consideration that the police has recorded an opinion contrary to the allegations being made m a complaint. It was conceded by the learned Counsel for the petitioner that opinion of the police is not binding on a Criminal Court as it is the determination of the Court itself arrived at after proper trial and in accordance with law, which confers a right on the accused not to be tried again for the same offence. Even an order of discharge, admittedly, does not bar the holding of a trial in case a Criminal Court of competent jurisdiction comes to the conclusion that the case prima facie made out against such an accused merits to be tried in accordance with law. The plea that while summoning an accused in a complaint, the opinion of the police recorded during investigation should not be ignored rather be given weight so that unscrupulous complainants may not feel free to involve innocent persons in criminal litigation thereby forcing them to undergo rigour of criminal trial, cannot be accepted as the same has neither the support The authority nor the scheme of the Criminal Procedure Code allows the adoption of the course canvassed by the learned Counsel. In Fateh Sher v. Khan Yasin Khan (1) it was observed that The Magistrate dismissing a complaint under section 203, Cr. P. C. cannot possibly look into reports submitted under section 174 or section 176, Cr. P. C. nor can he dismiss the complaint on the basis of such a report. He could only dismiss the complaint by looking at the complaint and the statement of the complainant on oath and the report and nothing else." It is the Criminal Court itself which has to form an opinion on the basis of the material produced before it, on the question whether the allegations made prima facie constitute an offence and as such furnish sufficient ground for proceedings against the accused. The other mode to ask the Court to take cognizance of an offence is by moving (l) P L D 1959 Lah. 660 a complaint. This mode cannot be rendered ineffective because of the fact that police during investigation was not able to collect evidence against an accused or otherwise was of the opinion that allegations made are not worthy of credence. As regard the plea that innocent persons should not be made to face the rigours of 9 criminal trial, it will be seen that the Legislature has made adequate provisions for curbing frivolous, vexatious or malicious complaints. In this connection section 211. Cr. P. C. may be referred. It is also open to the accused who is summoned, to show to the Court that h has been summoned without any reasonable cause or on the basis of insufficient material as he can seek dismissal of the complainant under section 203, Cr. P. C. Even at later stage of the trial he can make out a case of acquittal under section 265-K, Cr. P. C. Moreover, in case he is able to establish that the proceedings initiated against him were frivolous, unwarranted or mala fide, he can claim compensation under section 250, Cr. P. C. Thus sufficient provisions have been made to safeguard the interest of the person proceeded against without reasonable cause. 1 am, therefore, of the view that by taking cognizance of the offence on a complaint, neither the provisions contained in sections 154 to 176 of the Cr. P. C. are rendered nugatory nor the interest of justice, in any way, suffers.

Again, learned Counsel has not even cited a single provision of law in support of the plea that in the inquiry to be held under subsection (1) or investigation to be made under subsection (2) of section 202, Cr. P. C. examination of the police officers who had investigated the case, is necessary. The police cannot be considered to be a party to the proceedings. At that G stage, even the accused person is neither to be associated nor is to be heard. Thus, for the reasons noted above, neither the order of discharge nor the opinion of the Investigating Officers to the effect that the petitioner is innocent, is sufficient to render the impugned order illegal or improper.

4. The other submission that due to failure to examine the complainant, the order passed under section 202(2) directing that the investigation be made by the Magistrate was illegal, is also without any merit. In Kamal Khan v. Muhammad Naeem and 4 others (P L D 1979 Quetta 69) the view taken was that due to non recording of the statement under section 200, Cr. P. C. this being not a mandatory provision in relation to cases triable by the Court of Session, no prejudice could be or has been caused." Again, in Taj Muhammad and 2 others v. The State, and another (P L D 1979 Quetta 172) it was held that examination of com plainant on oath before issuing of any process is not obligatory for Sessions Court. In this case also, nothing has been urged to show that any prejudice was caused to the petitioner on account of not examining the complainant by the Additional Sessions Judge himself before directing the Magistrate to hold the investigation.

5. The last submission that sufficient material was not brought on record so as to warrant the summoning of the petitioner, need not be gone into as the petitioner, admittedly, approached this Court without even tendering appearance in the trial Court and as any expression of opinion by me at this stage may adversely affect the case of either of the parties. Assuming that the petitioner was summoned on the basis of insufficient material, it was open to him to represent his point of view by seeking dismissal of the complaint I under section 203, Cr. P. C. Moreover, the trial is to proceed in accordance with the provisions contained in sections 265-A to 265-N, including sec tion 265-K, where under the Court has the power to acquit an accused person at any stage of the case, if it considers that there is no possibility of the accused being convicted of any offence.

6. For the reasons given above, this revision petition is dismissed.

7. The record of the complaint case shall be sent back to the learned Sessions Judge immediately, who will either himself hold the trial, expedi tiously, alongwith the connected challan cases or will entrust it to some Additional Sessions Judge for the purpose.

Petition accepted.