2015 P Cr (PLP)

ABDUL LATIF KHAN, J.

This Criminal Miscellaneous application under section 561-A, Cr.P.C. is directed against the order dated 21-3-2014 passed by learned Sessions Judge/Zila Qazi, Shangla, whereby criminal revision filed by Bakht Swab was accepted, order dated 27-11-2013 passed by Judicial Magistrate/Illaga Qazi, Alpuri, Shangla, regarding dismissal of complaint was set aside and case was remanded back to the trial Court for recording evidence and decision afresh on merits.

2. Bakht Swab, complainant, lodged a complaint under sections 471/468/420/419, P.P.C. against Hussain Ali, the present petitioner, with the allegations that he through forged identity card has produced his wife Mst. Safia before the Court for recording her statement showing herself to be his sister Mst. Parveen and on the basis of that statement a false case has been registered against him.

3. On receipt of complaint on 26-11-2012, learned trial Court after recording statement of complainant under section 200, Cr.P.C., sent it to SHO concerned for inquiry and report. On receipt of report from police on 4-3-2013, learned Judicial Magistrate summoned the respondent/accused and, thereafter, fixed the case for recording evidence of complainant and it was on 27-11-2013 when learned Judicial Magistrate, without recording any evidence, dismissed the complaint by holding that the complainant was not a competent person to file a complaint as under section 31 of National Database Registration Authority Ordinance, 2000, complaint for offence under said Ordinance, had to be filed by Authority itself and not by a private person.

4. Feeling aggrieved, Bakht Swab filed a criminal revision which was accepted by learned Sessions Judge, Shangla, vide impugned order dated 21-3-2014, and remanded the complaint back to the trial Court for recording evidence and decision afresh, hence, the present petition under section 561-A, Cr.P.C.

5. Learned counsel for the petitioner argued that the complaint has rightly been dismissed by Illaqa Magistrate on legal ground as under section 31 of the NADRA Ordinance, 2000, complaint under the said Ordinance, has to be filed by Authority itself or by a gazetted Officer authorized by it in that behalf and complainant being private person is not competent to file a complaint under the Ordinance, ibid.

6. As against that, learned counsel for respondent supported the order of revisional Court and contended that though complaint under the Ordinance, ibid, has to be filed by the Authority itself but the allegations levelled against the petitioner in the complaint are not regarding the commission of offences listed in NADRA Ordinance rather it has been filed regarding the offences mentioned in Pakistan Penal Code.

7. I have considered arguments of learned counsel for parties and record perused.

8. The record reveals that Bakht Swab lodged a complaint under sections 419/420/468/471, P.P.C. with the allegations that respondent Hassan Ali had produced his wife, namely, Mst. Safia, before Judicial Magistrate for recording statement under section 164, Cr.P.C. on 19-11-2012 pretending her to be his sister, namely, Mst. Parveen and on the basis of that statement a false case vide F.I.R. No. 440 dated 19-11-2012 under sections 310-A/149/506, P.P.C. was registered against him. The complaint was marked to SHO concerned who submitted his report and according to police report the petitioner Hassan Ali prepared a CNIC with the fake name of Mst. Saila as his wife. Sections 202, 203 and 204, Cr.P.C. provide complete procedure for private complaint. A private complaint can be dismissed at preliminary stage under section 203 and subsection (3) of section 204, Cr.P.C. The relevant provisions are reproduced as under:--

202. Postponement for issue of process.

(1) Any Court, on receipt of a complaint of an offence of which it is authorized to take cognizance or which has been sent to it under section 190, sub section (3), or transferred to it under section 191 or section 192, may, if it thinks fit, for reasons to be recorded, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct any inquiry or investigation to be made by any justice of the peace, or by a police officer, or by such other person as it thinks fit for the purpose of ascertaining the truth or falsehood of the complaint: Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200. (2) A Court of Session may, instead of directing an investigation under the provisions of subsection (1), direct the investigation to be made by any Magistrate or Justice of the Peace subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint. (3) If any inquiry or investigation under this section is made by a person not being a Magistrate, or Justice of the Peace or a police officer such person shall exercise all the powers conferred by this code on an officer in charge of a police station, except that he shall not have power to arrest without warrant (4) Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witness on oath.

203. Dismissal of complaint.

The Court before whom a complaint is made or to whom it has been transferred or sent may dismiss the complaint, if, after considering the statement on oath, (if any) of complainant and the result of the investigation or inquiry (if any) under section 202 there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing.

204. Issue of process.

(1) If in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the forth column of the second schedule, a summons should issue in the first instance, it shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, it may issue a warrant, or, if it thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such court or if it has not jurisdiction itself some other court having jurisdiction. (2) Nothing in this section shall be deemed to affect the provisions of section 90. (3) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid, and if such fees are not paid within a reasonable time, court may dismiss the complaint. A look at the above provisions would make it clear that any Court after recording statement of complainant under section 200, Cr.P.C., may, for reasons to be recorded, postpone the issue of process for compelling the attendance of the person complained against and either inquire into the case itself or direct any inquiry or investigation to be made in the matter under section 202, Cr.P.C. and on receipt of inquiry report if the court is satisfied that prima facie case is made out for issuance of process, he would be legally competent to issue process or decline issuance of process by dismissing the complaint. In the present case the Judicial Magistrate after recording statement of complainant under section 200, Cr.P.C., marked the complaint to SHO concerned for inquiry and report and on receipt of report on 4-3-2013 summoned the accused/respondent for 19-3-2013. In compliance of process, the respondent attended the court and it was on 19-7-2013, after more than four months, when complaint, was again entrusted to Faridosh Khan, Inquiry Officer, for proper inquiry who submitted his report on 21-8-2013. On receipt of inquiry report, learned Judicial Magistrate was required either to dismiss the complaint under section 203, Cr.P.C. or issue process under section 204, Cr.P.C. but instead the trial court directed the parties to submit lists of witnesses and fixed the case for submissions of lists of witnesses and recording evidence of complainant for 27-8-2013 and on 27-11-2013 without recording evidence of complainant dismissed the complaint, which is not the mandate of Criminal Procedure Code. According to Criminal Procedure Code, where the court recorded statement under section 200, Cr.P.C. and after finding prima facie case takes cognizance of the matter, then procedure mentioned in Chapter XVII of the commencement of proceedings before Court shall be followed, therefore, the learned revisional court has committed no wrong in remanding the complaint back to trial Court for decision afresh.

8. As far as the contention of learned counsel that complainant is not competent to file a complaint for the offences relating to NADRA Ordinance as under section 31 of National Database and Registration Authority Ordinance, 2000, no court shall take cognizance of any offence under this Ordinance except upon complaint in writing made by the Authority or any gazetted officer authorized by it in this behalf is concerned, suffice it to mention that the instant complaint has been filed under the provisions of Pakistan Penal Code and not under NADRA Ordinance, 2000. Even otherwise penalty provided for the offences enumerated in section 30(1) and (2) of NADRA Ordinance shall be, in addition to any other penalty to which he may be liable under any other law and the contents of complaint reveal that complainant has levelled allegations against the petitioner regarding cheating by personation. For the aforesaid reasons, I do not find any jurisdictional error or legal infirmity in the impugned order dated 21-3-2014 of learned Sessions Judge/Zila Qazi, Shangla. The petitioner has failed to make out his case to invoke the jurisdiction of this Court under section 561-A, Cr.P.C., therefore, this petition having no merit is dismissed. HBT/412/P Petition dismissed.