1995 P Cr (PLP)

The brief facts of the case are that a case F.I.R. No.79, dated 5-7-1993 under section 302/324/337-A(I), (F-I)/148 and 149, P.P.C. was registered with Police Station Karianwala, District Gujrat. Mst. Iqbal Begum, respondent No.2, alongwith other co-accused was nominated as assailants.

2. Mst. Iqbal Begum, respondent No.2, filed a complaint under section 200, Cr.P.C. before the Illaqa. Magistrate which was forwarded to the Court of learned Sessions Judge, Gujrat. The learned Additional Sessions Judge after recording the statement of Iqbal Begum, respondent No.2, sent back the complaint under section 202, Cr.P.C. to learned Magistrate Section 30 to conduct the enquiry into the matter and submit report. The learned Magistrate after recording the evidence of Iqbal Begum submitted enqiry report to the learned Additional Sessions Judge. On the basis of the report the learned Additional Sessions Judge summoned the petitioner and the other accused in the said complaint. This led to filing of the present Constitution petition.

3. Learned counsel for the petitioner contended that the order passed by the learned Additional Sessions Judge is against the law and liable to be set aside, for the reason that the enquiry conducted by the learned Magistrate Section 30 under section 202, Cr P.C. is against the spirit of the section which provides that enquiry could not be considered to be proper if the accused was not called upon to have his version recorded and explain the position as otherwise truth or falsehood could not be ascertained. Further in cases of cross7version, principle of natural justice demands that no party could be condemned unheard and whenever legal phrase such as "enquiry" or "investigation" has been used it is assumed that the party complained would be called upon and given fair opportunity of hearing to ascertain the truth of falsehood. It was further argued that the learned Magistrate did not himself record the statement of lqbal Begum but relied upon the statement recorded by the learned Additional Sessions Judge and as such committed an error which makes the order of the learned Additional Sessions Judge summoning the petitioner as null and void.

4. Learned counsel for the State vehemently opposed the petition and contended that firstly the writ petition is not maintainable as the order is revisable. Secondly enquiry as envisaged in section 202, Cr.P.C. does not require association of the person complained against otherwise it would become dual trial of the accused.

5. I have heard learned counsel for the parties at length. In my view enquiry under section 202(1), Cr.P.C. is preliminary enquiry only to determine the truth and falsehood of the allegation made in the complaint and nowhere is a regular trial to adjudicate the guilt of the person complained against. The enquiry conducted by the learned Magistrate Section 30 under the direction of the learned Additional Sessions Judge in terms of section 202, Cr.P.C. and issuance of summons by him after receipt of the enquiry is not illegal and beyond jurisdiction. It is nowhere mentioned in section 202, Cr.P.C. that the person complained against be associated with the enquiry. Under the said section the accused has no locus standi and is not entitled to put his version and even cross-examine the witnesses either by himself or by proxy. The case Muhammad Ibrahim and others v. Qudrat Ullah Ruddy and others P L D 1986 Lah 256 relied upon by learned counsel for the petitioner is not attracted and applicable to the present case as in the cited case, the parties were same, cause of action was same, evidence was same and no third party was involved. In the case of Jainal Abedin Mia v. Wajid Ali Howaldar and 7 others 1969 P Cr. L J (Dacca) 857 it was held that the person complained against has no locus standi to appear before enquiry Magistrate and the Magistrate is not within his rights to give an opportunity to such person to be heard and to rely upon documents produced by him. It was also held in the case of Mst. Fatima Bibi v. Muhammad Jamil alias Jaimal and 4 others 1988 P Cr. L J 864 that it is not necessary that the person complained against be called at the stage of enquiry. This being so, no just exception can be taken to the impugned order of the learned Additional Sessions Judge. The present proceedings otherwise are, not competent. For all these reasons, there is no merit in this writ petition. It fails and is hereby dismissed. The parties are, however, left to bear their own costs. N.H.Q./R-159/L Petition dismissed.