P L D 2006 Karachi 105 (PLP)

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--This revision application is directed against the order dated 2-5-2003 passed by the learned Additional Sessions Judge, Shandadpur whereby he has dismissed the complaint filed by the applicant. The first grievance of Mr. S. Madad Ali Shah learned counsel for the applicant is that during the preliminary enquiry the learned Additional Sessions Judge Shandadpur issued notice to the accused persons and heard them and their advocate. He has pointed out that an application was submitted before the learned trial Court requesting to withdraw or vacate the order of issuance of notice to the accused during the preliminary enquiry, as the accused has no right of hearing during the course of preliminary enquiry. However, the learned Additional Sessions Judge dismissed the application by the following order:-- "It is surprising that advocate wants to proceed behind the back hence the application be filed." He has next contended that an application was submitted seeking permission to produce certain documents through witnesses but the application was rejected and consequently sufficient opportunity was not provided to the applicant for producing the necessary material. He has pointed out that not only notice was issued to the accused persons during the preliminary enquiry but their objections were also entertained- and brought on record. In support of his first contention that no notice can be issued to the accused persons during the course of preliminary enquiry and if accused persons are called during the course of preliminary enquiry it is an illegality, he has placed reliance on a single Bench judgment of this Court reported as M. Nawaz v. Ghulam Asghar and others 2001 YLR 1269. Incidentally this judgment has been authored by me. He has further placed reliance on the judgment of Honourable Supreme Court in the case of Azmat Bibi and another v. Asifa Riaz and 3 others PLD 2002 SC 687, wherein it has been held that in preliminary enquiry under sections 200, Cr.P.C. and 202, Cr.P.C. the person complained against has no right of participation, until cognizance is taken into the matter and he is summoned. Mr. Rasheed Ahmed Qureshi, learned A.A.-G. has supported the contentions raised by Mr. S. Madad Ali Shah and has submitted that the impugned order dismissing the complaint after issuance of the notice to the accused persons during the preliminary enquiry suffers from illegality, hence liable to the set aside. Mr. Allah Bachayo Soomro learned counsel for the respondents has supported the impugned order but not on the ground that the learned trial Court can issue notice to the accused persons during the course of preliminary enquiry and accord them opportunity of filing objections and address the arguments but on the ground that the complaint was barred under section 195(1)(c), Cr.P.C. I would not like to give any finding on the point raised by Mr. Allah Bachayo Soomro as I intend to remand the case back for fresh proceedings and this point can be considered by the learned trial Court. In view of the two judgments cited by Mr. S. Madad Ali Shah learned counsel for the applicant, I am of the considered opinion that the learned Additional Sessions Judge while rejecting the application which was submitted for vacating the order of issuance of notice to the accused has demonstrated total ignorance about the correct position of law. In fact it is surprising that the learned trial Court made observation that the advocate for the complainant wants to proceed behind the back. The law is very clear that the Court has to consider whether a prima facie case is made out or not, merely on the basis of statement of the complainant `under section 200, Cr.P.C. and statement of witnesses under section 202, Cr.P.C. if any enquiry is ordered or on the basis of investigation to be made by any Justice of Peace or by Police officer or by such other person as the Court thinks fit. This has to be done for the purpose of ascertaining the truth or falsehood of the complaint without calling the accused persons. The contention of the accused persons can be heard after issuance of process and summoning of the accused persons and not before issuance of the process. Since the impugned order and the order rejecting the application for vacating the order for issuance of notice to the accused suffer from illegality, therefore the order dated 2-5-2003 dismissing the complaint, order dated 19-12-2002 rejecting the application for vacating the order of issuance of notice to the accused and the order dated 19-12-2002 rejecting the application seeking permission to bring certain documents on record are hereby set aside. The case is remanded to the learned Additional Sessions Judge Tando Adam with direction that he shall afford full opportunity to the complainant to bring the entire material on record without issuing any notice to the accused persons and if he comes to the conclusion that a prima facie case has been made out he may issue process to the accused persons and thereafter the accused persons shall have the right of audience. The revision application is allowed accordingly. The R and P of the case has been called in this Court and it may be remitted to the Additional Sessions Judge Tando Adam immediately for further proceedings. M.H./A-269/K Case remanded.