MUHAMMAD ISHAQ BANDHANI Versus STATE

1. This revision application under section 439, Cr.P.C. is directed against the order, dated 21-3-1993 passed by the Sessions Judge, Karachi Central, dismissing a private complaint under section 17(3) of Offences Against Property (E.H.O.), 1979, under section 203 of Cr.P.C.

2. The facts in brief are that the applicant filed a direct complaint in the Court of Sessions Judge, Karachi Central against respondents Nos.2 to 4 under section 17(3) of Offences Against Property (Enforcement of Hudood Ordinance), 1979. On receipt of the complaint the learned Sessions Judge recorded the statement of applicant Muhammad Ishaq under section 200, Cr.P.C. on 21-3-1993 and on the same date passed the following order:--

3. "From perusal of the complaint and statement of the complainant recorded under section 200, Cr.P.C. it appears that the alleged incident appears to be defence plea taken by the complainant in order to counter-blast action taken by his opponents to protect him unauthorised occupation and story as narrated by the complainant also does not sound reason. I am, therefore, of the view that there is no sufficient material for proceedings against the accused persons. Hence complaint is dismissed under section 203, Cr.P.C."

4. I have heard the learned counsel and perused the record. The learned Sessions Judge had the power under subsection (1) of section 2,02, Cr.P.C. to postpone the issue of process for compelling the attendance of the persons complained against and either enquire into the case itself of direct an enquiry or investigation to be made by Police Officer or by such other person as thought fit for the purpose of ascertaining the truth or falsehood of the complaint. Such discretion by the learned Sessions Judge was to be exercised A judicially and not in an arbitrary or fanciful manner. The applicant had cited as many as six other witnesses in the complaint whom the applicant/complainant proposed to examine in support of his case. No reason has been shown by the learned Sessions Judge in the impugned order why the attendance of the witnesses was not compelled and how the applicant had not supported his complaint in his statement under section 202 of Cr.P.C. The reasons given by the learned Sessions Judge in the impugned order cannot be sustained for the simple reason that he has taken the defence of accused in consideration while passing such order when the accused were not even summoned to appear before the Court and no process was issued against them. The impugned order in the circumstances cannot be sustained and the same is accordingly set aside. The case is remanded to the learned Sessions Judge with direction to provide full opportunity to the complainant to examine his witnesses and produce the documentary evidence which he likes to produce in support of his complaint. Thereafter the learned Sessions Judge shall pass an appropriate order in accordance with law. These are the reasons for the short order, dated 13-1-1994.

5. N.H.Q./M-1950/K Case remanded.