Ihsan-ul-Haq Versus State
order
Farooq Haider, J.--- Through this petition filed under Section: 561-A Cr.P.C., Ihsan ul Haq (petitioner/complainant) has challenged the vires of order dated: 11.10.2019 passed by learned Additional Sessions Judge, Pasrur whereby revision petition filed by Nadeem Ashraf, etc. (accused persons/now arrayed as respondents Nos.2 to 6 in this petition) against the order dated: 22.02.2019 passed by learned Magistrate Ist Class, Pasrur {regarding summoning of aforementioned accused persons in the complaint filed by present petitioner (titled as Ihsan ul Haq v. Nadeem Ashraf, etc.)}, has been accepted and aforementioned summoning order dated: 22.02.2019 has been set-aside.
2. Brief however necessary facts for decision of instant petition are that Ihsan ul Haq (present petitioner) filed complaint in the Court of learned Area Magistrate, Pasur against Nadeem Ashraf, Naeem Ashraf, Azeem Ashraf, Safia Bibi and Ghulam Mustafa under Sections: 337-A(i), 392, 506-ii, 109 P.P.C (copy of the complaint is available at Page Nos.9-10 of this petition), cursory statement of Ihsan ul Haq (complainant) was recorded as Witness No.1, cursory statement of Nisar Ahmad was recorded as Witness No.2, cursory statement of Usama Dilawar was recorded as PW-3 and original receipt regarding application for registration of case was produced before the Court as P-3; learned Magistrate Ist Class, Pasrur after finding sufficient material as well as allegations to proceed with the complaint against the respondents, summoned them through notice vide order dated: 22.02.2019, copy of said order is available at Page No.19 of this petition and relevant portion of the same is hereby reproduced as under: -
Today instant private complaint was fixed for arguments. Arguments heard, record perused.
Perusal of record reveals that the complainant namely Ehsan Ul Haq has filed instant private complaint against the respondents/accused persons namely Nadeem Ashraf, Naeem Ashraf, Azeem Ashraf, Safia Bibi, Muhammad Ashraf and Ghulam Mustafa with the averments that the accused persons have made assault upon the complainant party and caused severe injury to the complainant, committed theft of Rs. 5000/- and also threatened for dire consequences. Corroboration to his version he has produced following cursory witness.
1 Ehsan ul Haq
2. Nisar Ahmad
3. Usama Dilawar.
Sufficient material as well as allegations to proceed with this complaint is ilable against the respondents. Let the respondents be summoned through notices for 22.04.2019.
Subsequently, Nadeem Ashraf, Naeem Ashraf, Azeem Ashraf, Safia Bibi, Ghulam Mustafa (accused persons/respondents Nos.2 to 6 in this petition) filed revision petition before learned Addl. Sessions Judge, Pasrur against aforementioned order dated: 22.02.2019 passed by learned Magistrate Ist Class, Pasrur (copy of said revision petition is available at Page Nos.21-22 of this petition), which was accepted and order dated: 22.02.2019 (mentioned above) was set-aside vide order dated: 11.10.2019 passed by learned Additional Sessions Judge, Pasur, which order has been impugned herein through instant petition.
3. Learned counsel for the petitioner submits that impugned order dated: 11.10.2019 passed by learned Additional Sessions Judge, Pasrur is against the law and facts of the case and requests for setting-aside the same while accepting this petition.
4. Learned counsel appearing on behalf of respondents Nos.2 to 6 submits that impugned order has been passed by learned Additional Sessions Judge, Pasrur while keeping in view peculiar facts and circumstances of the case, hence, instant petition is liable to be dismissed because respondents Nos.2 to 6 were summoned against the law as well as facts of the case. He has referred case law reported as Muhammad Rajar v. The State through Prosecutor General Sindh and others (PLD 2025 Supreme Court 40).
5. Learned Deputy Prosecutor General while supporting this petition submits that order dated: 22.02.2019 regarding summoning of accused persons/respondents Nos.2 to 6 was rightly passed by learned Magistrate Ist Class, Pasrur while finding sufficient material available on the record to proceed with the trial in the complaint, therefore, impugned order dated: 11.10.2019 passed by learned Additional Sessions Judge, Pasrur is not in accordance with law rather liable to be set-aside.
6. After hearing learned counsel for the parties, learned Deputy Prosecutor General and going through the available record with their able assistance, it has been noticed that Ihsan ul Haq (present petitioner) filed complaint (as detailed above), during recording his cursory statement, copy of his Medicolegal Examination Certificate was produced as P-1, cursory statements of the witnesses were recorded and after finding sufficient material available, persons complained against (now arrayed as respondents No.2 to 6) were summoned as accused for facing trial in the complaint.
It is relevant to mention here that for issuance of process for the purpose of summoning the accused in the complaint, law only requires availability of sufficient ground as provided under Section: 204 Cr.P.C. and not the reasonable ground . Term sufficient ground for proceeding against the accused person in complaint mentioned in Section: 204 Cr.P.C. cannot be equated with term reasonable ground for believing against the accused that he has been guilty of the offence within the contemplation of Section: 497 (1) Cr.P.C. and in this regard, guidance has been sought from case of Sarwar and others v. The State and others (2014 SCMR 1762). Prima facie case , does not mean a case proved beyond shadow of doubt but a case which can be established if evidence led in support of the same is believed.
At the time of summoning the accused, material available on record is not assessed in depth i.e. its relevance is seen and not the admissibility or evidentiary value, which was to be established at regular trial. In simple words, there is marked distinction as to the approach regarding appraisal of material on record i.e. averments made in the complaint and statements of complainant and witnesses recorded during preliminary inquiry for determining as to whether process to be issued against the accused or not in the complaint and at the regular hearing/trial of criminal case leading to determination of the guilt or innocence of the accused. So, when Court is satisfied with the material placed before it in the shape of complaint, documents annexed with complaint and statements of complainant and witnesses, then process can be issued for summoning the accused for facing trial.
Furthermore, if allegation levelled in the complaint fulfills definition of the offence , material available in the form of statements of complainant recorded under Section: 200 Cr.P.C. as well as of witnesses recorded under Section: 202 Cr.P.C. and/or documents supports said allegation, which is sufficient for framing of the charge and proceeding with the trial, then it is called as sufficient ground for summoning the accused in the complaint. It is also relevant to mention here that veracity of contents of the complaint as well as evidentiary value of the statements of witnesses to be produced during the trial, is to be seen during trial of the case when complainant as well as witnesses will face acid test of cross-examination.
Needless to add that during trial of the case, accused persons would have every opportunity for cross-examining the complainant and other witnesses, bringing their oral as well as documentary version on the record and to falsify the allegations mentioned in the complaint, they would have also opportunity to produce evidence in their defence as well as themselves appear as their own witness under Section: 340(2) Cr.P.C. for disproving the allegations levelled against them. Case law referred by learned counsel for respondents Nos.2 to 6 is having its own facts which are not identical to the facts of the case in hand; even otherwise, every criminal case has its own facts and circumstances. Hence, in the light of cursory statements of witnesses including the complainant as well as documents produced by the complainant including Medicolegal Examination report, trial court rightly came to the conclusion that sufficient material is available on the record to proceed with the trial against the accused persons and they were rightly summoned to face the trial. However, said important and vital aspect was not considered by learned Additional Sessions Judge, Pasrur at the time of passing impugned order dated: 11.10.2019. Therefore, impugned order dated: 11.10.2019 passed by learned Additional Sessions Judge, Pasrur in the revision petition is not in accordance with law, thus set-aside. Instant petition is accordingly accepted. Nadeem Ashraf, Naeem Ashraf, Azeem Ashraf, Safia Bibi and Ghulam Murtaza (accused persons/now arrayed as respondents Nos.2 to 6 in this petition, respectively) will appear before trial court in the light of order dated: 22.02.2019 passed by learned Magistrate Ist Class, Pasur/trial court in the complaint for further proceeding in accordance with law on the date to be fixed by trial court after receipt of attested copy of this order.
JK/I-17/L Petition allowed.