1990 PLP 2073 (MLD)

It is desirable to state briefly certain facts giving rise to this litigation.

2. Deceased Muhammad Qasim son of applicant Abdul Karim was Police Constable. In the year 1982 he was convicted for possessing unlicensed arms. After undergoing the sentence he left for Saudi Arabia, but was repatriated as he was found in possession of forged travel documents. On 10‑1‑1987 deceased Muhammad Qasim went to village Mallahan, where he was arrested by respondent No.1, working as D.S.P. It is stated that on 11‑1‑1987 at about 10‑00 a.m. applicant Abdul Karim and others met deceased Muhammad Qasim in lock up at Ghotki Police Station who was physically fit. It is alleged that on the same day at 11‑00 a.m. or 11‑30 a.m. deceased Muhammad Qasim and one Tahir Wasoo, a notorious dacoit were killed by respondents Nos.1 to 4 in police lock up, and a false drama of a police encounter was shown. Fakir Muhammad Brohi A S.H.O. Ghotki Police Station registered a case bearing Crime No. 10 of 1987 Ghotki Police Station under section 307/353, P.P.C. against Muhammad Qasim and others. Applicant Abdul Karim protested against this high‑handedness, but he was not heard. He, therefore, filed a complaint against respondents No.1 to 4 for the offence under section 302/34, P.P.C. in the Court of S.D.M. Ghotki, which was received by II‑Additional Sessions Judge, Sukkur. The learned Additional Sessions Judge recorded the statement of applicant Abdul Karim under section 200, Cr.P.C. He also examined Dhani Bux, Muhammad Ibrahim and Dr. Muhammad Nawaz under section 202, Cr.P.C. On the basis of evidence available on record, the learned Additional Sessions Judge dismissed the complaint under section 203, Cr.P.C. vide order dated 26‑9‑1987, giving rise to the present revision . application filed under section 435/439, read with section 561‑A, Cr.P.C.

3. I have heard Mr. Mallick Ghulam Kadir, learned counsel for applicant, Mr. Haji Shah Nawaz Chachar, learned counsel for respondents No.1 to 4, and Mr. Zawar Hussain Jafferi, learned A.A.‑G. for State. The learned A.A.G. has not supported the impugned order.

4. Chapter XVI of the Code of Criminal Procedure, 1898, deals with complaints to Courts. Section 200, Cr.P.C. speaks of statement to be recorded on oath. Section 201, Cr.P.C. lays down the procedure to be adopted by a Magistrate who is not competent to take cognizance. Section 202, Cr.P.C. relates to a preliminary inquiry or investigation. After preliminary inquiry or the investigation, as the case may be, the Court has got two courses, (i) either to dismiss the complaint under section 203, Cr.P.C. or bring the case on regular file by issuing process under section 204 Cr.P.C. (Chapter XVII). Section 203, Cr.P.C., whereunder the impugned order was passed provides as follows:‑ "

203. 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 the 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."

5. Under section 204, Cr.P.C., it is only a prima facie evidence that is required, and the Courts should not go into the details. The angle of consideration and the approach at this preliminary stage must be wholly different from the angle and approach to be adopted at the conclusion of the trial. The scope of B inquiry under section 202, Cr.P.C. was examined by Abdul Waheed, J. in the case of Muhammad Saeed and 3 others v. The State and another, reported in P L D 1984 Lah. 323, in which following observations were made:‑‑ "The principle deducible from them is that the object of the inquiry is clearly to ascertain the truth or falsity of a complaint in order to prevent the person accused therein from being harassed at all, or required to appear, if no prima facie case exists against him. What the section envisages at the stage of the inquiry is not a regular trial, or a full dress rehearsal for the trial, for adjudging the guilt or otherwise of the person complained against but only an inquiry for finding out as to whether there is available sufficient evidence to put the person complained against on trial and not sufficient evidence for convicting him." A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed (See Law Terms and Phrases by Mokal). The evidence which was brought on record prima facie connected respondents Nos.1 to 4 with this crime. The evidence of Dr. Muhammad Nawaz who had conducted autopsy on the dead body of Muhammad Qasim discloses that the left ventricle of the heart of Muhammad Qasim was damaged. The evidence of the expert completely destroys the case of police set up in F.I.R., in which Muhammad Qasim who was hurt in police encounter was arrested while he was alive and was brought to Ghotki Police Station, in the same condition. A person receiving fire‑arm injury at his heart is not expected to survive even for a minute.

6. The case of the prosecution mainly rests upon circumstantial evidence. It must be remembered that circumstantial evidence may be frequently more cogent than the evidence of eye‑witnesses. It is not difficult to produce false evidence of eye‑witnesses, but it is on the other hand extremely difficult to produce circumstantial evidence of a convincing character.

7. In the result the revision application is accepted and the impugned order dated 26‑9‑1987 passed by 11‑Additional Sessions Judge, Sukkur, by which the complaint filed by applicant was dismissed under section 203, Cr.Y.C., is set aside. The case will go to II‑Additional Sessions Judge, Sukkur for further enquiry. N.H.Q/A‑892/K Revision application accepted.