1990 P Cr (PLP)

(f) Criminal Procedure Code (V of 1898)

S. 203

Dismissal of complaint

Judicial finding must rest on legal grounds established by legal testimony. (g) Criminal Procedure Code (V. of 1898)

S. 169

Opinion of Investigating Officer based on belated collection of evidence or material against offenders not named in F.I.R. is not to be followed blindly in every case

Such opinion is not in the nature of legal evidence and has to be tested in the light of totality of the material on record. Abdullah Jan Mirza for Petitioner. Qazi Muhammad Asif for Respondents Nos. l to

3. Muhammad Aslam Khan, AA.-G. for the State. Date of hearing: 14th May, 1990.8 This criminal revision petition is directed against an order passed by the learned Additional Sessions Judge, Abbottabad, dated 16-10-1989, whereby the complaint under section 302/307/34, P.P.C. filed against respondents i to 3 was dismissed.

2. On 12-3-1988 at 8-30 p.m. the deceased Muhammad Safdar, Chairman Union Council Nara was engaged in work relating to Union Council with the help of his Secretary in the baithak of his residential house, when a shot rang out from window of that baithak with the result that the deceased was hit on right side of his head and he died there and then while his son Muhammad Shamim, petitioner sustained pellet injuries on his left ear. On rushing out, the petitioner saw respondents 1 to 3, armed with shot-guns fleeing towards their house in the light of patromax burning in the Baithak. On his alarm, Azizur Rehman, Nazarul Islam sons of Ali Zaman, Rukh Zaman son of Abdul Rehman and Ghulam Mustafa son of Shah Zaman, who, in the meanwhile were coming to the house of deceased, also saw respondents 1 to 3 with torch light rushing to their house. The motive for the offence was litigation over Shamilat Deh. The petitioner then proceeded to police station Nara and on his arrival there at about 10 p.m., the same day, he lodged the report of the occurrence, narrating the above facts in substance.

3. Purporting to act on the aforesaid report, S.I. Salim Khan, proceeded to the spot, where, on his arrival, he collected blood-stained earth, seven pellets of .12 bore gun, two wads, one pellet extracted from wooden pillar plus three more pellets with two wads from different holes, besides a piece of wooden pillar with pellet holes and made them into separate parcels in the presence of Kala and Azizur Rehman mentioned above. He also took into possession blood-stained clothes of the deceased with two bottles containing pellets extracted from his dead body, as also other articles including wick of patromax then burning on the fateful night in the presence of Riaz and Muhammad Sadique, sons of Ali Zaman, brother of Azizur Rehman referred to above. He recorded the statements of the witnesses mentioned in the F.I.R. as well as those of recovery witnesses and got the petitioner medically examined. He also prepared site plan. After about a month, the investigation, all of a sudden, took a turn and the S.I. arrested Sadique, a marginal witness of recoveries effected above and Ali Aksar son of Abdul Rehman, brother of Rukh Zaman P.W. under section 107; Cr.P.C. and obtained statements from them by force, as alleged in their affidavits attached herewith, showing that some other persons, namely Shaukat and Mumtaz had a hand in or were privy to the murder of Muhammad Safdar deceased. In the meanwhile, the petitioner filed a habeas corpus application for release of Sadique and Ali Akbar, both of whom were set free on 13-4-1988 before the 16th of April, a date fixed by High Court therein. However, the Sub-Inspector while accepting alibi on foot of oral statements of some officials, got respondents 1 to 3, released under section 169, Cr.P.C. and submitted challaned against Mumtaz and Shaukat, who were acquitted on 29-1.0-1988 on the basis of compromise between them on one side and petitioner on the other, because the latter never charged them nor accepted them as authors of the crime. At long last, in the background of the aforesaid facts, the petitioner filed a private complaint on 15-10-1988 in the Court of Ilaqa Magistrate under section 307/302/34, P.P.C. against respondents 1 to 3 alleging more or less the factual position highlighted above. On 8-1-1989 the complaint was sent by the Ilaqa Magistrate to the Sessions Judge, Abbottabad, who, on very day, remitted the same to him for inquiry and report as required under section 202, Cr.P.C.

4. In compliance with the above order of the Sessions Judge, the Ilaqa Magistrate recorded the statements of petitioner and his two other witnesses, namely, Azizur Rehman and Rukh Zaman P.Ws. mentiond in the original F.I.R. The petitioner contended himself with production of the above set of witnesses but Ilaqa Magistrate on his own examined S.I. Malik Muhammad Salim and Liaqat Khan, Secretary Union Council, Nara. There are serious allegations against the Investigation Officer in the complaint, but nevertheless, partly influenced by his opinion about innocence of respondents 1 to 3 and partly by the statement of Secretary, who did not see the culprits while firing, held on 2-8-1989 that "the case is not fit enough to proceed with. On 16-10-1989, the Additional Sessions Judge, Abbottabad on receipt of the above report, passed an order in the following terms: - ?In view of the inquiry report coupled with the statements of P.Ws. there are no sufficient grounds to proceed with the complaint. As such the present complaint does not merit consideration and the same is hereby dismissed. File be consigned to the record room after completion.? Feeling aggrieved of this order, the petitioner has come up in revision to this Court.

5. At the very outset of hearing the learned counsel for respondents 1 to 3 has taken a preliminary objection to the effect that the order of discharge of contesting respondents under section 169, Cr.P.C. has not been challenged and hence, that order has become final and the present revision petition is not competent nor maintainable. And, alternatively, he has contended that dismissal of complaint entails acquittal of respondents 1 to 3 and the remedy of the petitioner lay in leave to appeal within purview of section 417(2), Cr.P.C. As regards the first limb of contention, the legal position is crystal clear. A Magistrate while concurring with a report submitted under section 173, Cr.P.C. does not function as a Criminal Court. There is no lis before him and hence he is not obliged to hear the parties nor does, he give any decision. Exconsequenti, an attribute of finality or irrevocability to such stn order is never attached nor can it be invoked. The party affected thereby is left free to institute a complaint on the same facts and the same Magistrate does not even after passing such an order become functus officio. On the contrary, he is within his legal competence to entertain and deal with such a complaint on material submitted or detailed therein. In other words, a Magistrate, while discharging an accused on a report of police under section 173, Cr.P.C is not acting as a Court, and his order is not revisable under section 439, Cr.P.C. Understood in this sense, if that order is not impeached, it does, not stand as a bar to the remedy of tiling, a private complaint on the same facts with some additional allegations. Reference in this respect may with advantage be made to Bahadur and other, v. The State and another P L D 1985 SC

62. Likewise the second limb of contention that revision is not competent, is devoid of any legal force, for the simple reason that no process, had been issued against respondents 1 to 3 and therefore, question of their acquitted hardly enters into consideration. There is a marked and clear distinction between dismissal of a complaint under section 203, Cr.P.C. and order of acquittal passed under section 249-A or 165-K, Cr.P.C. The former is subject to revision while the latter is appealable. Further, sections 20(1, 202 and 203, Cr.P.C. envisage proceedings before a Magistrate with a defined procedure and has no nexus with a trial of a complaint under section 302, PY.C. in a Sessions Court in respect of which different procedure is devised. Hence order relating to dismissal of complaint filed by the petitioner is revisable and, in this context, I am fortified by the view taken in 1987 P Cr. L J 294 and 1986 P Cr. L J 1814. In this way, both the contentions of the learned counsel for respondents 1 to 3 stand repelled. 6.???????? Now coming to the propriety of the order sought to he impeached, the matter can be looked at from different angles. In the first place, the Ilaqa Magistrate had already sent the complaint on 8-1 1989 to the Court of Session and the learned Sessions Judge was competent to take cognizance of the offence alleged in the complaint and examine the complainant for a preliminary statement. It was neither proper nor lawful for the learned Sessions Judge to have asked for the opinion of the Ilaqa Magistrate if a prima facie case had been made out against the contesting respondents. Equally, even the report received from the concerned Magistrate that the complainant had failed to establish a prima facie case in the preliminary inquiry was without jurisdiction and a nullity in law. In the next place, the statements recorded by the Magistrate do not partake the nature of substantive evidence and hence no Judicial finding of any sort could be based r on such evidence. It is elementary rule of law that a judicial finding must rest on legal grounds established by legal testimony. The learned Additional Sessions Judge had fallen into error in dismissing the complaint outright on the statements recorded in preliminary inquiry. There is no getting away from the basic fact that three, out of the four witnesses, named in the F.I.R. have supported the complaint and version given therein. If one witness has failed to identify or see the culprits while firing, it does not mean others have equally failed to do so. The opinion of the Investigating Officer, based on belated collection of evidence or material against offenders not named in the F.I.R. is not to be followed blindly in every case. It is not in the nature of legal evidence and has to be tested in the light of totality of the material on record and should not. rest on single gambit. In the third place, the order passed by the learned Additional Sessions Judge is not a speaking order, nor backed by substantial reasons or critical analysis of what the witnesses had stated. On the other hand, there is an injured witness in this case and his presence on spot cannot be easily ignored at this stage, especially when the scene of offence is laid in his residential house, from which recoveries of incriminating articles had been made soon after the occurrence. This comment, however, is without prejudging the case and causing prejudice to either party.

7. Resultantly, I have no option but to accept the revision petition, and remand the complaint to the learned Additional Sessions Judge, Abbottabad ?with a direction to himself record some evidence of material witnesses of complainant whom he wishes to produce and if he finds a prima facie case, he may proceed with the complaint in accordane with law. N.H.Q./1088/P??????????? Revision petition accepted.