MUHAMMAD SAEED AND 3 OTHERS vs THE STATE AND ANOTHER

ORDER

' This revision petition is directed against an order passed by the learned Additional Sessions Judge, Lahore, on 20th June, 1983.

2. On st of December, 1972, at about noon Ashraf alias Gora son of Jaial Din, Hafizullah alias Bashir Munna and Boota Masih were killed in the area of Mauza Salamatpura, about three miles away from Police Station, Moghalpura, Lahore. One Muhammad Hussain son of Ibrahim on the same date at 2.00 p. m. Lodged a report at Police Station, Moghalpura, alleging that all the three deceased who were Badmash and proclaimed offenders had come to their Mauza for the purpose of committing theft. They were chased by the complainant and one Muhammad Ashraf son of Muhammad Ismail. Ashraf alias Gora deceased threatened them with dire consequences if they did not stay behind but they refused whereupon Ashraf alias Gora deceased took out his revolver and fired at them but they ducked and escaped the shot. All the three deceased proceded further and the complainant and Muhammad Ashraf son of Muhammad Ismail continued chasing them and raising an alarm. Some other persons of the village including Ghulam Rasul alias Sain also joined the complainant in chasing the deceased. They tried to encircle the deceased in order to apprehend them. All the three deceased continued firing at them with their revolvers. Only of the shots hit Ghulam Rasul alias Sain in his abdomen. The chasers threw brickbats etc. At the deceased as a result of which they received injuries to which they succumbed at the spot.

3. On the above report a case under seetion 307, P. P. C. And section 13 of the Arms Ordinance, 1965, was registered. After investigation by the local police, the case as set up in the F. I. R. Was found correct and since all the three accused named therein had died, no further proceedings were deemed necessary.

4. On 15th December, 1972, Habib Ullah, respondent No, 2, father of Hafizullvh alias Bashir Munna deceased, filed a complaint under sections 148 and 302/149, P. P. C. Alleging that his son and the other two deceased had been murdered by the petitioners and their co-accused in the presence of Siraj Din, Narinjan Masib, Sadiq Masih and Inayat Bibi and others. The District Magistrate, Lahore before whom the complaint was filed, entrusted, it to a Magistrate, 1st Class, Lahore. The Magistrate first directed an investigation in the complaint by the Crimes Branch who reported that the complaint was false and frivolous but the Magistrate feeling dissatisfied with the report proceeded to hold an inquiry under section 202, Cr. P. C. However, before any process could issue against the petitioners, the Law Reform. Ordinance, 1972, was promulgated in pursuance of which the Magistrate sent the complaint to the Court of Session on 13-3-1976. The Additional Sessions Judge to whom the complaint was entrusted for disposal, passed an order on 11-2-1977 on the basis of the evidence already recorded by the Magistrate in the inquiry held by him under section 202, Cr. P. C., issuing non-bailable warrants of arrest against the petitioners arid their co-accused for appearance.

5. The order of the Additional Sessions Judge was challenged in this Court by a Criminal Revision No, 240 of 1978 which was, however, dismissed on 4-4-1978. Feeling dissatisfied, the petitioners filed in the Supreme Court Criminal Appeal No, 116 of 1979 which vide judgment dated 27-3-1983 was allowed, the orders of the High Court, dated 4-4-1978 and that of the Additional Sessions Judge, datei 11-2-1977 were set aside and the Additional Sessions Judge was directed to proceed from the complaint stage in accordance with the law. It was observed, "there is no law, nor has any been pointed out, to warrant that the proceedings earlier taken by the Magistrate preparatory to or in the course of commitment of the case had any relevance after the enforcement of the Ordinance.

It follows that the Additional Sessions Judge was not entitled in law to go into the statements of the witnesses recorded by the Magistrate. For that purposes he was himself empowered to proceed under section 202, Cr. P. C. If he so considered necessary".

6. In compliance with the above directions of the Honourable Supreme Court, the learned Additional Sessions Judge held a fresh inquiry into the complaint under section 202, Cr. P. C. He recorded the statements of Habib Ullah complainaut, Muhammad Ashraf, Inayat Bibi and Siraj Din besides the medical officer who conducted autopsy on the dead bodies of the deceased and on the basis of this evidence found a prima fade case under sections 148 and 302/1-.9, P. P. C. Against the petitioners and four others and vide his detailed order, dated 20th June, 1983, issued non- bailable warrants against them.

7. The above order has been assailed on the ground that the learned Additional Sessions Judge in failing to examine Narinjan Masih and Sadiq Masih who had been cited in the complaint an eye- witnesses and instead examining Muhammad Ashraf who had not been so named specifically committed a material irregularity. In fact Narinjan Masib and Sadiq Masib, during the pendency of the inquiry, had applied under section 540, Cr. P. C. For their examination but the learned Additional Sessions Judge did not deem it necessary since according to him the evidence aJduced by the complainant disclosed a prima fade case against the persons accused in the complaint. He allowed the complainant to produce such evidence in support of his complaint as he wished to produce. Narinjan Masih and Sadiq Masih probably wanted to exculpate the petitioners.

8. The learned counsel for the petitioners has argued at length on the object of an inquiry under section 202, Cr. P. C. And cited some authorities as well viz. Syed Wahid Bux Shah v. The State and another (I); Allah Yar v. The State (2), M. B. Zaman Advocate v. Rana Muhammad Sarwar (3); Vadilal Panchal v. Dattatraya Dulaji (4), Pramatha Nath Talukdar v. Saraj Ranjan Sarkar (5) and Abdul Jabbar alias Achar v. The State (6). I need not discuss these authorities individually. The principle deducible from them is that the object of the inquiry is clearly to ascertain the truth or falsity of a complaint in order to prevent the person accused therein from being harassed at all, or required to appear, if no prima facie case exists against him. What the section envisages at the stage of the inquiry is not a regular trial, or all full dress rehearsal for the trial, for adjudging the guilt or otherwise of the person complained against but only an inquiry for finding out as to whether there is available sufficient evidence to put the person complained against on trial and not sufficient evidence for convicting him.

9. The above principle was evidently borne in mind by the learned Additional Sessions Judge while holding the inquiry and passing the impugned order. In the inquiry the complainant examined besides himself four witnesses, namely, Muhammad Ashraf, Mst. Inayat Bibi and Ch. Siraj Din as eye-witnesses and Dr. Sabir Ali who conducted autopsy on the dead bodies of the three deceased on 2-12-1972. The complainant himself was not an eye-witness of the occurrence. According to him, in those days he was posted at Sargodha and it was subsequently that he came to know of the murder of Hafiz Ullah alias Bashir Munna, his son and two others by the petitioners and their co- accused. The eye-witnesees, however, stated that they saw the petitioners and their co-accused committing the crime. The statement of the Medical Officer lent support to their testimony. In view of this evidence, the refusal of the. Learned Court below to examine Narinjan Masih and Sadiq Masih was not violative of any provision of law r d its conclusion that a prima facie case under sections 148 and 302/149, P. P. C. Existed against the petitioners and their co-accused did not suffer from perversity so as to justify interference by this Court on the revisional side.

10. Accordingly, I find no substance in this revision petition and dismiss the same in limine.

(1) PLD 1964 Kar. 316 (2) 1968 P Cr. L J 1526

(3) .1968 P Cr. L J 755 (4) AIR 1960 SC 1113

(5) AIR 1962 SC 876 (6) 1974 P Cr. L J 110