1995 P Cr (PLP)

Rifat Hayat v. Judge, Special Court for Suppression of Terrorist Activities 1994 SCMR 2177 and Raja Khushbakhtur Rehman and another v. The State 1985 SCMR 1314 ref. Malik Saeed Hassan for Petitioner. Kh. Ahmad Tariq Rahim for Respondent No.1. Masood Chishti, A. A.-G. Date of hearing: 23rd April, 1995. Briefly, the facts of the revision petition are that the petitioner got registered case F.I.R. No.209, dated 1-8-1993 under section 302/34, P.P.C. against the respondents with Police Station Saddar, Sialkot.

2. The Extra-Assistant Commissioner, Sialkot after investigation and on the report of Investigating -Officer, dated 29-11-1993 discharged one of the accused Muhammad Saleem respondent on 8-12-1993 on the basis of report under section 173, Cr.P.C.

3. Feeling aggrieved of the hostile attitude of the police, the petitioner preferred a private complaint. against the respondents in the Court of Illaqa Magistrate, Sialkot on 22-1-1994, against the discharge of respondent Muhammad Saleem. The complaint ultimately was entrusted to Mr. Muhammad Ashraf Shagufta learned Additional Sessions Judge, Sialkot for disposal in accordance with law on 2-2-1994.

4. Meanwhile the police submitted the challan in case F.I.R. aforementioned in the Court of Illaqa Magistrate on 4-1-1994; the learned Magistrate sent the same to the Court of learned Sessions Judge, Sialkot on 26-1-1994; learned Sessions Judge further entrusted the State case as well to the Court of learned Additional Sessions Judge, Sialkot for trial purposes.

5. The learned Additional Sessions Judge initiated proceedings in complaint case on 18-4-1994; recorded the statements of the eye-witnesses and of the Medical Officer; the witnesses supported the prosecution version; in spite of it, the learned Additional Sessions Judge dismissed the complaint on 6-7-1994 by observing "since challan has been submitted against the respondents Nos.2 and 3, putting the name of Muhammad Saleem in column No.2 of the final report with the assertion that Muhammad Saleem son of Rehmat Ali has been declared innocent, deeper appreciation of the preliminary evidence at this stage would not be proper as the same may prejudice the case on either side; hence this revision petition against the impugned order, dated 6-7-1994 by the learned Additional Sessions Judge, Sialkot.

6. The learned counsel for the petitioner vehemently contended that there is sufficient evidence to connect the respondents with the commission of the offence and dismissal of the complaint in the summarily manner by the learned Additional Sessions Judge has occasioned in grave miscarriage of justice and the opinion of police cannot be considered, after recording the evidence of prosecution witnesses in the complaint case, further dismissal order of the complaint case is against the law. Further contended that the respondents have no locus standi to be heard at this stage as process of summoning against them have not yet been started.

7. I have heard the learned counsel for both the sides and have perused the record with their able assistance.

8. It would be appropriate to mention here that during the arguments; power of attorney on behalf of respondents is being filed by Kh. Ahmad Tariq Raheem, Advocate; it is well-settled principle of law that as inquiry under section 202(1), Cr.P.C. is preliminary inquiry only to determine the truth and falsehood of the allegations made in the complaint and nowhere in a regular trial to adjudicate the guilt of the person complained against. It is no where mentioned in section 202, Cr.P.C. that the person complained against be associated with the inquiry. Under the said section the accused has no locus standi and is not entitled to put his version and even cross-examine the witness either by himself or by proxy. In the light of dictum laid down in cases of Jainal Abedin Mia v. Wajid Ali Howladar and 7 others 1969 PCr.1.J 857, Mst. Fatima Bibi v. Muhammad Jamil and 4 others 1988 PCr.LJ 864 and in case Riaz Ahmad v. The Additional Sessions, Judge, Gujrat and another 1995 PCr.LJ 14, I am of the view it is not necessary even to implead persons complained against as respondents at this stage as process of summoning them has not yet started; so it is not necessary that the respondents be heard at this stage.

9. In view of the submissions of learned counsel the question to be determined is whether both the cases i.e. complaint as well as police case should be consolidated or there should be separate trial in which case it shall have to be determined which case should be tried first. In case Nur Ellahi v. The State PLD 1966 SC 708; the facts of the case were identical to the case in hand; in the aforementioned case the learned S.C. examined the question as to what should be the procedure adopted by the learned trial Judge and held that "after considering all aspects of the matter, we hold that a fair procedure would be for the learned learned trial Judge to take up the complaint case first for trial. During that case the learned trial Judge may call the witnesses mentioned in the police challan, if they were not already examined on behalf of the complainant, as Court-witnesses under section 540-A of the Criminal Procedure Code, so that they can be cross-examined by both the parties. This will enable the Court to have the whole relevant evidence included in one trial and a decision could be arrived at after a proper consideration of the entire material relied on by the parties. The accused persons would in addition obviously have the right to adduce defence evidence if they so choose. If that trial results in a conviction, it will be for the Public Prosecutor to consider whether or not he should withdraw from the prosecution, with the permission of the Court, under section 494 of the Code of Criminal Procedure, in the police challan case". Similarly dictum laid down by the Supreme Court has been followed in case Atta Jilani v. The State and another 1980 PCr.LJ 901 wherein it has been held that complaint case alongwith challan case can be consolidated as the complaint case being not a counter-version of the challan case but is supplementary same trial and trial of both cases together is not illegal. Their Lordships of Supreme Court in case Rifat Hayat v. Judge Special Court for Suppression of Terrorist Activities 1994 SCMR 2177 followed the dictum laid down in case Nur Elahi v. The State (supra) and hold that though the accused were found innocent by the two successive police investigations can be summoned in complaint case. Similarly in case of Raja Khushbakhtur Rehman and another v. The State 1985 SCMR 1314 while learned Supreme Court dealing with similar arguments observed as under:-- "(7) As regards the power of trial Court to summon- the petitioners, who had been placed in column No.2 learned counsel does not deny that the trial Court is possessed of such power. He contends that the trial Court had not taken proper note of the fact that the petitioners had been found guilty neither by the police nor by the Illaqa Magistrate to whom the case had been referred under section 202, Cr.P.C. The learned Judge in his order, dated 3-10-1978 has given reasons for summoning the petitioners. He had perused the record before him. His order summoning the petitioners thus suffers from no legal infirmity."

10. The learned Additional Sessions Judge in case in hand instead of summoning the petitioner dismissed the complaint on the ground that it would not be proper to issue the process as the same may prejudice the case of either side is misconceived.

11. The learned Assistant Advocate-General when confronted frankly conceded that the order passed by the learned Additional Sessions Judge is in contravention of the dictum laid down by the superior Courts.

12. In view of the above discussion, the impugned order passed by the learned Additional Sessions Judge, Sialkot, dated 6-7-1994 is set aside, the revision petition is accepted and the learned trial Court is directed to proceed with the complaint case in according with law. There shall be no order as to costs. N.H.Q./M-2116/L Revision accepted.