2011 SCMR 508 (PLP)

GHULAM RABBANI, J.

Petitioner seeks leave to appeal against the order dated 24-12-2009 whereby Criminal Revision Application No. 158 made by respondent No. 1 (Mst. Erum) was allowed and the Criminal Complainant No. 447 of 2009 filed by the petitioner before the Sessions Judge (South) Karachi was dismissed while the Criminal Miscellaneous Application No. 305 of 2009 made by him under section 561-A, Cr.P.C. against disposal of his F.I.R. under 'C' Class was disposed of in the following terms:-- "However, order passed by the learned Magistrate on report under section 173, Cr.P.C. shall have effect of only being a recommendation or a report of the Magistrate to the Court having power to take cognizance. Learned Judicial Magistrate is directed to transmit his report/order to the Court competent to take cognizance and that Court shall pass an order on it in accordance with the law. However while passing such order it shall in no way influenced by any of the observation made hereinabove. Criminal Revision Application No. 305 of 2009 is disposed of in the above terms."

2. Relevant facts are that the petitioner Ch. Muhammad Adnan and respondent No.1 Mst. Erum are husband and wife, while respondents' Nos. 2, 3, 4 and 5 are respectively her maternal uncle, father, mother and brother. On direction of the Court on petitioner's application under section 22-A, Cr.P.C., the petitioner lodged on 7-5-2009 F.I.R. No.150 of 2009 with Police Station Clifton Karachi, which was registered under sections 324, 337-J/34, P.P.C. It was investigated into and as a consequence, on report of the police, the case against the respondents was disposed of under 'C' Class by a Judicial Magistrate (XVIth Civil Judge and Judicial Magistrate South Karachi) as according to him no sufficient evidence was available. Petitioner, therefore, filed on 2-11-2009 before the High Court a Criminal Miscellaneous Revision Application No.305 of 2009 which was disposed of in the terms noted above vide impugned judgment.

3. Meanwhile, the petitioner filed on 24-8-2009 a criminal complaint which was admitted, registered and process was issued against the respondents in the shape of bailable warrants vide order dated 15-10-2009 passed by the Additional Sessions Judge (South) Karachi. The respondents challenged the said order before the High Court of Sindh by way of Criminal Revision Application No.158 of 2009, which was allowed and the complaint filed by the petitioner was dismissed vide judgment impugned herein.

4. During course of his arguments, learned counsel for petitioner stated that respondent No.1 had filed a valid criminal complaint when, the police failed to send the accused for trial in case arising out of F.I.R. No.150 of 2009 got registered by the petitioner, which was subsequently disposed of wrongfully in 'C' Class. As far as the issuance of process on petitioner's direct complaint, his contention was that learned Additional Sessions Judge had rightly exercised her jurisdiction in issuing the process against the respondents after holding preliminary enquiry and in that no serious error or law or any irregularity was committed by her. In addition, his submission was that if the respondents were aggrieved by the order whereby process was issued against them, they had a remedy available under section 265-K, Cr.P.C. after appearance in the Court instead of challenging the order by way of Revision Application, before exhausting such remedy, therefore, impugned judgment was not sustainable in the eyes of law hence liable to be set aside. On the other hand learned Additional Prosecutor-General opposed this petition and supported the impugned judgment.

5. We have given due consideration to the submissions of learned counsel for the petitioner and have gone through the material made available before us. Record shows that the petitioner had lodged F.I.R. against the respondents alleging therein that his wife, Mst. Erum, the respondent No. 1 herein, made an attempt with intention to kill him by serving poisonous food in the dinner and breakfast respectively on 13-4-2009 and 14-4-2009. No specific role was, however, attributed to the rest of the accused. In the almost similar set of facts, the petitioner filed direct/criminal complaint under sections 324, 337-J read with sections 109/34, P.P.C., on which, on 15-10-2009, the trial Court passed an order in the terms that "Admit/Register. Issue Bailable warrant against the accused at sum of Rs.50,000 each." Admittedly, this order was passed after preliminary enquiry was held and in that statements of petitioner and his witnesses were recorded. It appears that learned Single Judge has, thoroughly examined the evidence so brought on record beside medical report submitted by the Prosecutor General vis-a-vis the relevant case law and dismissed the complaint. While doing so, he has observed that:-- "As far as section 337-J is concerned, there are two alleged actions. Poisoning was allegedly administered, firstly during the dinner; there is no witness of it. Secondly in the breakfast; contents of breakfast have not been sent to any laboratory for analysis. Consequently after having break-fast complainant ran like sprightly deer to the meeting and the school and the airport. Obviously there cannot be any hurt there. As far as 324, P.P.C. is concerned, medical opinion of Agha Khan Hospital is crystal clear that firstly level of benzodiazepine is marginally excess of limit (237.3 against limit of 200 mg/ml) and 'secondly it is almost never fatal.' Moreover it is an ingredient present in many medicines and the complainant has been declared as normal and alert by the hospital." The question whether the respondents. Nos. 2 to 5 acted in prosecution of their common intention to cause death of the petitioner was also considered, and given due attention to by the learned Single Judge who observed; rightly so, that:-- "Since neither in the complaint nor in statement under section 200, Cr.P.C. nor in any statement of an any of the witnesses under section 202, Cr.P.C. any role or specific act on part of any of four relatives or respondent (wife) has been stated, it, in any case, could not be a case under section 34 of P.P.C." Learned counsel for petitioner though argued his case as noted above, he was not in a position to persuade us to take a different view.

6. As regards, contention of learned counsel relating to the exercise of powers on Revision Application of respondents made without first availing the remedy in approaching the Trial Court under section 265-K, Cr.P.C. it may be stated that although the petitioner has himself admitted in the memo of the instant petition that, "the powers of revision in accordance with section 439 of Cr.P.C. are entirely unfettered", he has simultaneously taken a plea that, "it would not be proper for the High Court to allow what would virtually be an appeal from the order of the lower Court." In this, in the first instance it will suffice to observe that 'there could be no cavil to the proposition that section 265-K, Cr.P.C. is a remedial provision and does not create a bar in exercise of the powers of High Court acting as a Revisional Court under section 439, Cr.P.C. which leaves at the discretion of the Court to exercise any power conferred on a Court of appeal by sections 423, 426 427 and 428, etc. Cr.P.C. in the case of any proceedings the record of which has been called by itself or which otherwise comes to its knowledge.

7. Before parting with this judgment, it may be stated that on perusal of the impugned judgment, we find that learned Single Judge has passed orders requiring the Judicial Magistrate to transmit his order/report to the court competent to take cognizance and pass orders on it, in accordance with law; palpably, considering the same to have the effect of only a recommendation or a report of the Magistrate. This direction, on the face of it, appears to be misconceived and we do not feel ourselves inclined to agree to it because it is always for the Magistrate who is competent to take cognizance of the offence and pass an order on the report of the police. Learned Single Judge has not stated in the impugned judgment that the Judicial Magistrate who disposed of the F.I.R./case of petitioner did not have the jurisdiction to take cognizance and pass appropriate orders in the case or for that matter he lacked territorial jurisdiction. In this behalf it may be stated that learned Judge in Chambers has, in the impugned judgment, referred to the case reported as Soofi Abdul Qadir v. The State and others (2000 PCr.LJ 520) wherein it has been observed that, Ratio decidendi in all the cases appears to be that since the Magistrate while concurring with a police report submitted under section 173, Cr.P.C. does not act as a Criminal Court inferior to the Court of Session and the High Court, his order cannot be revived and modified. under the provisions of sections 435, 439, Cr.P.C. but in that case it is amenable to the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. provided the order amounts to abuse of process of Court." which perhaps he has lost sight of. It will be significant to note that the petitioner himself chose that course for remedy by filing Application No. 305 of 2009 under section 561-A, Cr.P.C. challenging the order of the Magistrate disposing of the case under 'C' Class. Be that as it may, since there is nothing on record before us that the above direction of the learned Single Judge has been challenged by the respondents who could be the party actually aggrieved, therefore, we do not consider it necessary to go deep into his question having already expressed ourselves, hereinbefore.

8. Having dealt with the matter as above we do not see any merit in this petition and dismiss the same accordingly. Leave refused. M.H./M-5/SC Petition dismissed.