2002 PLP 180 (YLR)

Raja Abdur Rehman for Respondent No.

3. Ch. Muhammad Hanif Khatana, Addl. A.-G. (Punjab). I intend to dispose of the Criminal Revision No.772 of 2001 filed by Bayed Kalb-e-Abbas and Criminal Revision No. 775 of 2001 filed by Sayed Aftab Ijaz, as both of them have been filed against the impugned orders dated 26-9-2001 and 4-10-2001 respectively. Report submitted by respondent No. 2 dated 20-9-2001 has also been challenged through these revision petitions.

2. Brief facts arising out of these petitions are that F.I.R. No. 303 dated 12-11-2000 was registered under section 302/34, P.P.C. at the written complaint of Muhammad Amin present respondent No. 3 with the Police Station Ghalib Market, Gulberg, Lahore. Allegations in the said F.I.R. are that at about 8-45 p.m. on 12-11-2001 the brother of the complainant namely Waseem Raja aged about 20/21 years was going towards Pace opposite McDonald Restaurant, Gulberg on motorcycle No. LOR 5183 when another motorcycle going ahead of the deceased was stopped by the police officials but it hit one of the constables as a consequence of which the motorcycle of the deceased collided with that other motorcycle and the deceased fell on the ground whereupon respondents Nos. 4 and 5 who were standing with other police officials started hitting the deceased with the Mutts of their rifles and that one of the butts launched on his neck which made him senseless. It was further stated in the F.I.R. that the deceased while injured remained lying, unattended and was afterwards taken to United Christian Hospital but he was found to have already sucumbed to his injuries. Two persons namely Rana Iftikhar Ahmad and Akhlaq Ahmed were named as eye-witnesses in the said F.I.R. The investigation was conducted by the S.H.O., Police Station Ghalib Market, Lahore who found the allegations against the police accused persons as incorrect. Thereafter, the complainant approached the petitioner on 22-11-2000 and at the request of the complainant the petitioner transferred the investigation of the case to Superintendent of Police Model Town, Lahore who is respondent No.8. Respondent No.8 conducted the investigation of the case personally and found the allegations of the complainant to In. false. Thereafter, the complainant again, approached the petitioner who in view of this, dissatisfaction of the complainant i,e respondent No. 3 requested the D.I.-G Lahore for the transfer of the investigation this case to Range Crime Branch. Thereafter the investigation of the was entrusted by the, D.I.-G. Lahore to respondent No. 9, S.P Crimes Branch who also arrived at the same conclusion but upon the insistance of the complainant he submitted the challan of the case against respondent No. 5 under section 319, P.P.C.

3. Respondent No. 3 having felt dis-satisfied lodged a private criminal complaint bearing No. 131 of 2000 on 17-7-2001 in the Court of Illaqa Magistrate under sections 302/201/109, P. P. C. Learned Illaqa Magistrate transferred this complaint to the learned District Sessions Judge, Lahore who in turn entrusted this complaint to Ms. Uzma Chughtai learned Additional Sessions Judge, Lahore who recorded the statements of the complainant and two witnesses namely Rana Iftikhar Ahmad and Akhlaq Ahmad whereafter she forwarded this complaint under section 202, Cr.P.C. to the respondent No. 2 learned Judicial Magistrate for conducting the inquiry. Respondent No. 2 has submitted the report in which he has stated in his inquiry under section 202, Cr.P.C. that prima facie offence 302, P.P.C is made out against respondents Nos.4 and 5 Ashfaq Ahmad and Muhammad Amjad and offence 201, P.P.C. is made out against the petitioners and other respondents and section 109, P.P.C. according to the report of the respondent No. 2 is not made out against respondents Nos. 3 to

7. Through the impugned order the petitioners and other respondents in the private complaint have been summoned to face the trial under section 302, P.P.C, read with section 201, P.P.C.

4. Learned counsel for the petitioner contends that according to the inquiry report section 109, P.P.C. has been found not to have been made out against the petitioners; therefore, application of section 201, P.P.C. was required to be examined specifically against each accused person and the Inquiry Officer as well as the learned Additional Sessions Judge have failed to give out any specific instance or the reasons leading to the conclusion that a prima facie case under section 201, P.P.C. was made out against the petitioners. It is further contended that even if the statements of the P. Ws. are taken as correct for the sake of arguments, even then the ingredients of section 201, P.P.C. are not made out from the statements. He relied upon Ashfaq Ali's case PLD 1979 Kar. 799 and the relevant pages are 803 and

804. It is further contended that in order to issue the process the basic criteria under section 204, Cr.P.C, is availability of sufficient grounds for proceedings with the complaint, which grounds accordingly are not available in this case. He relied upon Sadho's , case 1980 PCr.LJ 441 and the relevant portion is at page

443. He also relied upon Rahim Dad's case 1980 PCr. LJ 500, where the quashment petition was accepted on the ground that sufficient grounds were not available for the issuance of the process under section 204, Cr.P.C. Contending that Additional Sessions Judge while issuing the process under section 204 has failed to appreciate the nature and scope of the evidence produced by the complainant, he has relied upon Amir Bakhsh's case 1990 PCr.LJ 1765 and Haji Muhammad's case PLD 1966 Lahore

344. On the query of this Court learned counsel for the petitioners relied upon Rahim Dad's case 1980 PCr.LJ 50 and has stated that in the quashment petition this Court can interfere in the process which has been issued instead -sending the accused who were summoned to face the trial or move an application under section 265-K, Cr.P.C. He also relied upon PLD 1997 SC

275. It is further contended by the learned counsel for the petitioner that the impugned order has been passed without any reasons and only the summons have beer. issued without any discussion of the evidence by the learned Additional Sessions Judge. It is further contended that it is judicial order and it requires to be supported by the reasons and grounds. He relied upon section 24-A of the General Clauses Act where it has beer made obligatory upon all authorities including the Courts to pass any order under statute in just, fair and reasonable manner and for the purpose of the enactment it has. also been made obligatory by subsection (2) of section 24-A of the General Clauses Act that the reasons are required to be recorded. Learned counsel for the petitioners further contends that there is no sufficient evidence available to summon the petitioners in this case and the impugned order has been passed without applying the mind and without giving any reasons. Before passing the order under section 204, Cr.P.C. the trial Court was required to form an opinion on the basis of sufficient ground for proceedings. The Learned trial Court without forming any opinion has summoned the petitioners in a mechanical manner, and the order is liable to be set aside as it is not in accordance with sections 204, Cr.P.C. and section 24-A of the General Clauses Act. Relies on judgments reported as "1996 MLD page 1867, 1994 PSC (Crl.) 768, PLD 1967 SC 317 and 1986 PCr.LJ. Page 2359 and 1990 MLD 2073.

5. Raja Abdur Rehman, learned counsel for the respondent-complainant has opposed this petition on the ground that the learned trial Court before the issuance of process had applied its mind and as the sufficient evidence was available on the record to connect the petitioners with the commission of the crime hence the process issued by the trial Court is justified and is a lawful order which cannot be interfered with in the revisional jurisdiction and the petitioner can approach the trial Court if he has some arguments and can make an application under the relevant provisions for setting aside of the order. Even otherwise he argues that there was no need to pass a detailed order by the learned trial Court at the time of issuance of process to the petitioner.

6. I have heard the learned counsel for the parties and also perused the impugned order. The learned trial Judge after the receipt of the preliminary inquiry report has passed the following order: - "Report under section 202, Cr.P.C. is perused. Let the accused be summoned for 4-10-2001." Even bare perusal of the above said order is sufficient to hold that the trial Court has summoned the petitioners to face the trial without giving any reasons whatsoever and has not mentioned the sufficient grounds A necessitating proceedings against them. The trial Court was bound to pass a speaking order as by the issuance of process to face the trial in a murder case will cause harassment and agony to face the rigours of trial. It is well-settled law that before summoning of an accused in a complaint the Court should not B ignore giving of weight to the preliminary evidence recorded so that unscrupulous complainant may not feel to involve innocent persons in a criminal litigation thereby forcing them to undergo rigorous of criminal trial. It is the trial 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 al, offence and as such furnish sufficient ground for proceeding against the accused. The learned trial Court in the case in hand has not come to the conclusion on the basis of the evidence recorded by itself that prima facie case against the petitioners is made out for summoning them to face the trial rather he passed the impugned order in a mechanical manner without considering the evidence on the record merely on the basis of the inquiry report which has been submitted by the learned Magistrate. It will be very, unsafe to uphold such type of orders as i: amounts to giving of the powers of Criminal Court to an Inquiry Officer if the inquiry reports only are made basis for the summoning of the accused instead of exe; rising the power by a criminal Court by itself in a reasonable manner on the basis of sufficient ground. In the peculiar circumstances of this case whereby the petitioners, alongwith the respondents, who have investigated the case or passed the orders for the transfer of the investigation of a case to any subordinate officer have been made accused/respondents to face the trial under sections 302/201, P.P.C. the Court was duty bound to consider all the material facts whether the police officers who have passed the orders for the transfer of the investigation or who have investigated the case are protected by any law if they have done something in discharge of their official functions/duties in accordance with law. The passing of the mechanical order by the trial Court has definitely prejudiced the case of the petitioners and the petitioners will suffer irreparable loss and injury to their reputation and to their service career which cannot be allowed. The learned trial Court has passed the impugned order in a mechanical manner and has failed to exercise the jurisdiction vested in it by only relying upon the inquiry report.

7. This revision petition is accepted, the impugned order dated 26-9-2001 is set aside and is declared as illegal and unlawful with direction to the respondent/trial Court to pass the fresh orders and shall consider whether sufficient evidence is, on the record to summon the petitioners and their co-accused to face the rigours of a criminal trial. In the peculiar circumstances of this case the trial Court shall consider the case of the accused/respondents in a private complaint on the basis of the allegations levelled against them by considering individual responsibility of each accused/respondents. At this stage as I am setting aside the order order only as it has been passed in a mechanical manner. These grounds can be taken if some order is passed against the petitioners at the subsequent stage and this order Twill, not prejudice the case of any of the parties as the merits of the case and the evidentiary value of the statements of the witnesses recorded so far, has not been taken into consideration by this Court while accepting the revision petition.

8. As the learned trial Court has already passed the orders and issued the process in a mechanical manner and has given its mind the learned Sessions Judge, Lahore, is directed to withdraw the private complaint titled "Muhammad Amin Prince v. Ashfaq Ahmed Constable etc., "from the Court of the learned Additional Sessions Judge, 'Lahore and he shall entrust this case to any other Court of competent jurisdiction. If feels necessary he shall try the case afresh himself from the stage of conclusion of the recording of preliminary evidence and shall decide about the issuance of process to the respondents in the private complaint. N.H.Q./K-105/L Criminal Revision accepted.