1985 PLP 1226 (MLD)

Mst. Ghulam Fatima the mother of Rasheed Ahmad petitioner, was murdered on 21-7-1981 at Sehriwela. The F.I.R. viz. F.I.R. No, 329 was lodged by the petitioner on the same day at Police Stationm. Kotwali, Jhang, at 1-05 p. m.

2. Subsequently, on 2-9-1981 the petitioner filed a complaint against Sufi Abdul Latif, respondent, under section 302, P.P.C. in the Court of Ilaqa Magistrate. In the complaint, he contended that the A.S.I. Incharge of the police post concerned colluded with the respondent before the petitioner went there to lodge the report and that the said A . S.I . simply obtained the signatures of the petitioner on a blank paper. He recorded thb F.I.R. in a manner that it helped the respondent. It was further alleged that the mother of the petitioner was murdered by the respondent in the manner as detailed in the complaint and the details given in the F .I. R . were not correct.

3. It is note worthy that as a result of investigation, in pursuant to the afore mentioned F.I.R. challan against the respondent was submitted under section 304, P.P.C. in the Court of Section 30, Magistrate, Jhang.

4. The complaint filed by the petitioner under section 302, P.P.C. was forwarded to the learned Sessions Judge, Jhang, by the Ilaqa Magistrate under section 190(3), Cr.P.C.

5. The complaint was entrusted for disposal to a learned Additional Sessions Judge, Jhang. The said learned Additional Sessions Judge, without recording the statement of the complainant, sent the complaint A to Mr. Amir Ali, Magistrate Section 30 Jhang, for enquiry under section 202, Cr.P.C. The petitioner produced his witnesses before the learned Magistrate who after enquiry submitted report to the effect that since a case under section 304, P.P.C. against the respondent was already pending before the learned Magistrate Section 30, Jhang, relating to the same occurrence and if during the trial the said learned Magistrate B formed a view that offence under section 302 was made out against the respondent, he could amend the charge and forward the case to the learned Sessions Court under section 347, Cr.P.C.

6. The learned Additional Sessions Judge acting upon the aforesaid report of the Enquiry Magistrate observed that there was no need to proceed with the complaint case and if after recording evidence, the Magistrate seized of the trial of the case under section 304, P.P.C. found that he could not property dispose of the case, he should send the file to the Court of Sessions under sections 346 and 347, Cr.P.C. The complaint was consequently dismissed.

7. The order of dismissal of the complaint was passed on 13-6-1982 and the said order has been impugned through the present criminal revision.

8. It has been contended on behalf of the petitioner that under section 200, Cr.P.C. it was obligatory for the learned Additional Sessions Judge to record the statement of the complainant before ordering enquiry under section 202, Cr.P.C. by a Magistrate. The violation of the provisions of section 200, Cr.P. C. according to the learned counsel for the petitioner is not curable under section 537, C. P. C .

9. It has also been urged that the dismissal of the complaint has not been ordered on merits. It has been dismissed after observing that the trial Magistrate in the challan case under section 304, P.P.C. if came to the conclusion, that a case under section 302, P.P.C. was made out, he could forward the records of that challan case to the Court of Sessions.

10. It has been urged that different details of the same occurrence have been provided in the complaint case. The proper course for the learned Additional Sessions Judge was to hear the challan case as well as complaint case pertaining to the same occurrence himself and to dispose of both the cases at one and at the same time. In Muhammad Shafi v. Khushi Muhammad and others 1982 P Cr. L J 499 it was held by this Court :- "However, learned Sessions Judge ordered preliminary enquiry by a Magistrate without having examined the complainant. The latter's statement was recorded by learned Magistrate which he was not competent to do in law. In cases originating with private complaints sent to the Court of Sessions under section 190(3), Criminal Procedure Code, learned Sessions Judge is required to record preliminary statement of the complainant. The proceedings in the case were, therefore, vitiated by substantial error of law which could not be cured under section 537, Criminal Procedure Code. In the result, proceedings taken in the case from the stage of order of learned Sessions Judge sending the case to the Magistrate for enquiry without having recorded statement of the complainant are set aside. Learned Sessions Judge, shall first examine the complainant for statement under section 200, Criminal Procedure Code. Preliminary enquiry, if any, be preferably entrusted to a Magistrate other than the one on whose report processes were issued to the accused (respondents)."

11. Similarly, in Ali Asghar v. The State and another 1982 PCr.LJ 415 it was observed:- "As said above, learned Additional Sessions Judge should have recorded preliminary statement of the complainant for a decision whether process should be issued to the respondent or issuance of process should be postponed for a preliminary inquiry into the allegations made against the respondent in the complaint. The order filing the complaint without prejudice to the rights of the parties to contest the matter during hearing of the challan case is not warranted by any provision of law. Learned Additional Sessions Judge should take up the complaint for necessary proceedings in accordance with law. In case process is issued to Khushhal Khan respondent, challan case and the complaint case can proceed simultaneously."

12. In Noor Elahi v. The State and others P L D 1966 S C 708 it was held that where there are complaint case as also challan case relating to the same occurrence, the complaint case should be taken up first and police challan to be taken up only if the complaint case resulted in acquittal.

13. In the circumstances of the under consideration case as narrated above, the legal and proper course for the learned Additional Sessions Judge was to record the statement of the complainant and thereafter if he considered expedient, he could refer the matter for enquiry under c section 202, Cr.P.C. to the Magistrate. If the statement of the complainant and the preliminary enquiry warranted action on the complaint, the learned Additional Sessions Judge should have appropriately tried the challan case as also the complaint case in the Court in the manner as indicated in P L D 1966 S C 708.

14. In the light of above observations, the criminal revision is allowed, the impugned order, dated 13-6-1982 passed by the learned Additional Sessions Judge, Jhang, is set aside and the complaint case is remanded to the learned Additional Sessions Judge for its disposal afresh in accordance with law in the light of observations made above. H . A . K . Petition accepted.