P L D 1965 (W (PLP)

Ss. 200, 202, 203 & 204‑Magistrate instead of examining complainant and ordering inquiry under S. 202 and subsequently recording that complaint be filed‑Order, held, not sustainable. Petitioner in person. N. M. Khan for Respondent. Sh. A. Majid for the State. Date of hearing : 11th January 1965. On 5‑10‑1963 Muhammad Ayub filed a complaint against Mir Wali under sections 302 and 392, P. P. C. in the Court of Assistant Commissioner, Mansehra. The Assistant Commissioner did not proceed to record the statement of Muhammad Ayub and instead referred the complaint to the police for inquiry. On receipt of the report he made an order on 4‑11‑63 that it be placed on the file. Later on the case against Muhammad Ayub and another under section 379/411 was entrusted to Mr. Raza‑Ullah Khan, Magistrate 1st Class, Mansehra. On 30th of December 1963, Muhammad Ayub made an application to the said Magistrate wherein he prayed that he should be given the opportunity to produce evidence in proof of the allegations in the complaint filed by him. The learned Magistrate passed the following order on this application of Muhammad Ayub :‑ "This application submitted by the defence counsel to day. I have gone through the complaint placed on file No. 54/2 under section 379/411, P. P. C. and came to the conclusion that the same complaint was sent by the Assistant Commissioner, Mansehra to the Deputy‑Superintendent of police for necessary action. The same was returned to the said Court along with the report, which placed vide order dated 4‑11‑1963 by the Assistant Commissioner, Mansehra. This application may also be placed on the file."

2. Aggrieved by the aforesaid orders Muhammad Ayub filed a revision petition in the Court of Sessions Hazara at Abbottabad and the learned Sessions Judge referred the matter to this Court with the recommendation that the order of the Magistrate be set aside and he be directed to proceed with the complaint in accordance with law. Mr. N. M. Khan who appears on behalf of Mir Wali raised a preliminary objection and contended that the reference by the learned Sessions Judge to this Court was not competent inasmuch as he was empowered under, section 436, Cr. P. Code to set aside the order and direct the learned Magistrate to proceed with the complaint in accordance with law. I do not agree. Section 436 empowers the High Court and the Sessions Judge to order further inquiry into any complaint which has been dismissed under section 203 or sub section (3) of section 204; or into the case of any person accused of an offence who has been discharged. It will thus be seen that the order passed by the Assistant Commissioner, Mansehra and the subsequent order of Mr. Razaullah Khan dated the 30th of December 1963, was neither an order under section 203 nor subsection (3) of section 204, Cr. P. C. and as such the ‑learned Sessions Judge could not decide the matter himself. He was, therefore correct in making a reference to the High Court for setting aside the order in question with a direction to the learned Magistrate to proceed with the complaint in accordance with law. The preliminary objection is, therefore, overruled.

3. On a perusal of the complaint filed by Muhammad Ayub against Mir Wali I find that it discloses the commission of offences under sections 302 and 392, P. P. C. It was the duty of the Magistrate to have examined the complainant under section 200, Cr. P. Code which he failed to do. Instead he acted under section 202 of the Code and referred the complaint for inquiry to the police. Under section 203 of the Code the Magistrate was bound to consider the statement on oath, if any, of the t complainant and the result of the investigation or inquiry, if any, and then pass an. order either dismissing the complaint under section 203 or summoning the accused as provided by section 204 of the Code. The Assistant Commissioner did not act in. accordance with the provisions of the Code when he passed ark order on 4‑11‑1963 that the complaint made by Muhammad Ayub be placed on file. A similar order was passed by Mr. Razes Ullah Khan 04 the 30th of December 1963. In view of the imperative provisions of the Code none of these orders could be sustained in law. I would, therefore, accept the reference set aside the impugned order and direct the Magistrate who is seized of the case of receiving stolen property against Muhammad Ayub and another to proceed with the complaint in accordance with law. K. B. A. Reference accepted.