1982 P Cr (PLP)

Ss. 439 & 436-Revision (criminal)

Sessions Judge issuing process against four out of six nominated accused persons in a complainant filed under Ss. 307/324/325/506, P. P. C. on reasoning that no case made out against co-accused not summoned by him

Contention that Sessions Judge only required to look at case, cursorily at this stage, and could not launch upon sifting of facts held, misconceived-Dismissal of complainant in toto under S. 203, Cr. P. C. held further, subject to revision under S. 436, Cr. P. C. and no order requiring straightway trial of accused against whom Court below declined to issue process, could be passed. (b) Criminal Procedure Code (V of 1898)

S. 202

Enquiry, effect of-Referring Court not bound to accept report of Enquiry Officer, entrusted with initiating preliminary enquiry under S. 202, Cr. P. C. Wasim Sajjad for Petitioner. This application in revision under section 439, Criminal Procedure Code is brought from the order of learned Sessions Judge, Kasur, refusing to summon Khushi Mohammad and Mohammad Shafi respon dents (1 & 2) in a complainant for offences under sections 307/324/325/506, P. P. C.

2. The facts germane to the grievance sought to be redressed through this application are that Mohammad Shafi petitioner filed complainant before a Magistrate at Chunian alleging commission of above offences by the accused numbering six in all. The complainant was passed on to learned Sessions Judge, Kasur, by the Magistrate under section 190 (3), Criminal Procedure Code for trial along with the case of murder arising out of the incident subject-matter of the complainant. The complainant was after observance of necessary fomality of law viz. examination of the complainant under section 200, Criminal Procedure Code, sent back to the Magistrate by learned Sessions Judge for preliminary enquiry under section 202, Criminal Procedure Code. Having examined several witnesses adduced by the petitioner in support of the allegation levelled against the accused, learned Magistrate returned the report that a prima facie case under sections 307/325/148/149, P. P. C. was made out against all the six accused in the case. However, A learned Sessions Judge ordered issuance of process against four accused and declined to summon the respondents with the view that no case was made out against them. Propriety of order of learned Session Judge refusing to call the respondents to answer the charges levelled against them has been challenged inter alia on the ground that learned Sessions Judge was required to look at the case cursorily at this stage, and could not launch upon sifting of facts. Learned Sessions Judge had lightly ignored the report of the Magistrate and has also over looked the provisions of section 149, Pakistan Penal Code.

3. The petition fails for a variety of reasons. The prayer in the concluding para of the petition that respondents be ordered to be tried by learned Sessions Judge is misconceived. When in a complainant against several persons, Court refuses to summon all of them the, order of refusal was to all intents and purposes an order of dismissal of the complainant against those persons under section 203, Criminal Procedure Code which could be revised under, section 436, Criminal Procedure Code. Further enquiry only could be ordered under the said section which in the case of dismissal of complainant under section 203, Criminal Procedure Code should ordinarily mean re-consideration of the case. The order straightaway for trial of the accused against whom the Court below had declined to issue process could not be passed. Learned Sessions Judge was not bound to accept the report of Enquiring Officer. As a rule of prudence revisional Court should not lightly discard estimate of evidence by the Court of first instance unless g it is found palpably erroneous. I have compared the allegations in the complainant with the statements of witnesses during the equiry and find that order of learned Sessions Judge did not merit interference. Dismissed to limine. Petition dismissed.