1988 P Cr (PLP)

Azmat Dad Khan for the State. Date of hearing: 17th November, 1987. Mst. Fatima wife of Abdul, caste Khokhar Machhi, resident of Chak- No.194/GB Tehsil and District Toba Tek Singh is aggrieved of the order of dismissal of her complaint made on 7-10-1986 by the learned Additional Sessions Judge Rahimyar Khan and it has been prayed that the impugned judgment may be set aside and the case remanded for regular trial.

2. The petitioner alleged that on 15-8-1985 she had approached the police at Police Station Machka District Rahimyar Khan and was not learned to but on the order of the Deputy Superintendent of Police a case was, however, registered against the respondents and she was sent to local Hospital for medical examination and the swabs obtained from her were sent to the Chemical Examiner and a positive report was also received by the police but later the police collided with the respondents and moved the authorities to discharge the accused--which fact came to her knowledge when she received a summons from the Civil Judge Sadiqabad in a suit for compensation having been filed by the respondents against her and her witnesses. Mst. Fatima therefore filed a complaint on 14-6-1986 before Magistrate 1st Class Sadiqabad who referred the same to the Sessions Judge Rahimyar Khan as the offences were triable by the Sessions Judge, Rahimyar Khan. On the receipt of the file the learned Sessions Judge referred the complaint to the Additional Sessions Judge where the same was registered on 16-6-1986 and for the statement of the complainant it was to be put up on 29-6-1986 but on that date the complainant was not in attendance and the case was adjourned to 13-7-1986 on which date the case was referred to the Magistrate for enquiry. The complainant was not examined on oath under Section 200 Cr.P.C. by the Additional Sessions Judge. A report was however received on 4-10-1987 from the Magistrate Sadiqabad (Syed Bahadur Shah) to the effect that the case was false and a counter-blast. The learned Additional Sessions Judge vide his order dated 7-10-1986 has dismissed the complaint without affording full opportunity to the complainant /petitioner to establish her case.

3. The petitioner had alleged in her complaint that she had gone to see her brother at the model farm. On 15-8-1985 she and her brother named Ahmad were sleeping at night at 'dera' they heard the noise of the barking of dogs, they woke up and found the respondents who are distinctly related. Jameel and Salabat held her Hair and forcibly dragged to nearby "Sahat" (Chhapper) the pther three respondents held her brother Ahmad. She tried to raise alarm but was threatened by the respondents with dire consequences. In the but Jameel and Salabat committed zina-bil:jabr with her turn by turn and also snatched away the golden ring she was wearing in her ears. Thereafter she was brought out and she saw that her brother had been tied with a tree with the help of ropes who had also been threatened not to make noise. The other respondents also snatchecd Rs.800 and the wrist watch from her brother. The complainant started weeping on account of her modesty having been "outraged. In the meantime the Chowkider of the model farm named Abdul Rashid and Saeed Ahmad and Nawaz Khan came over there and saw all that and identified the respondents through the light of their torches on 'lalkara' of the witnesses the respondents fled away after firing. The witnesses untied and released Ahmad. The complainant told them about the commission of zina and depriving her of the ear-rings to the witnesses and Ahmed told the witnesses that he had been deprived of Rs.800 and wrist watch by the respondents.

4. The complainant produced the witnesses before the Magistrate and tendered the medical certificate. The report of the Enquiry Officer on which the order of dismissal is passed is based on the observation that the Chemical Examiner's report was not on the file and the P.W. Ahmad being the brother of the complainant has not seen the offence being committed and so the other witnesses. The learned Sessions Judge has expressed that there is no motive for the commission of the offence.

5. The learned counsel for the petitioner Mr. Muhammad Aslam Chatta, Advocate has challenged the order passed by the Additional Sessions Judge and has submitted that the evidence produced before the Enquiry Magistrate prima facie makes out a case and the way in which the proceedings have been conducted; and the accused/ respondents have been allowed to put their gases in the absence of the complainant has offended the law applicable to the case before the issuance of the summons to the respondents lay the learned Additional Sessions Judge. Mirza Masood Advocate has appeared for the respondents and Mr. Azmat Dad Khan, Advocate, for the State. It appears from the report submitted by the Enquiry Officer that he allowed the accused party to appear through counsel and the Magistrate having heard the counsel appraised the evidence in his own judgment and submitted the report saying that the complaint was a counter-blast and the learned Additional Sessions Judge on going through the report dismissed the complaint and assigned reasons which have been challenged before me.

6. The question that crops up is whether a Magistrate making sin enquiry under Section 202 Cr.P.C. had jurisdiction to weigh the evidence in golden scales as was done in the present case and lastly whether the reasons assigned for the dismissal of the complaint could be available on record.

7. From the reading of the provision of law contained in Chapter XVI of the Code of Criminal Procedure the scheme is clear that an accused person does not come in the picture at all till the process is issued. This does not mean that he is precluded from being present when the enquiry is held 'by a Magistrate. He may remain present either in person or through pleader with a view to be informed of what is going on cut since the very question fir consideration being whether he should be called upon to face accusation, he has no right to take part in the proceedings nor the- Magistrate has an jurisdiction to permit him to do so. No doubt one of the objects behind the provision of Section 202 C r. P. C. is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named there in as accused being called upon to face an obviously frivolous complaint. But there is also, another object. Behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the duty of the Magistrate while making an enquiry to elicit all facts not merely to protect the interest of an absentee accused person, but also with a view to bring to book a person or persons against when grave allegations are made. Whether the complaint is frivolous pr nor has, at that stage, necessarily to be determined on the basis placed, before him by the complainant, whatever defence the accused may have can only be enquired into at the trial and an enquiry under Section 202 C r. P. C. can in no sense be characterised as a trial for the reason that in law there can be but one trial for an offence. Permitting an accused person to interfere during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused to take part in an enquiry. The enquiry is for the purpose of ascertaining the truth or falsehood of the complainant that is far ascertaining whether there is evidence in support of the complainant so as to justify the issue of process and commencement of proceedings against the persons concerned. The section does not say that a regular trial for adjudicating the guilt or otherwise of the person complained against should take place at that stage for the person complained against can be legally called upon to answer the accusation made against him only when a process is issued and he is put on trial. The object of the provision of Section 202 Cr.P.C. is to enable the Magistrate to form an opinion as to whether the process should be issued or not to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath what is to be seen is whether the evidence in support of the allegations of the complaint and not whether the evidence is sufficient to warrant a conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. An enquiry under Section 202 Cr.P.C. is not to be linked to a trial which can take place after process is issued and that there can be only one trial. The Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at .the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before hand by the persons examined at the instance of the complainant. In the case before me an investigation by police was not ordered by the learned Additional Sessions Judge but an enquiry by a Magistrate 1st Class. It was not open to him to consider in this connection the statements recorded during the investigation by .the police on the basis of the F. I. R. allegedly lodged by the complainant or any evidence adduced during the investigation arising out of the F.I.R. All these were matters extraneous to the proceedings under Section 202 Cr.P.C. The learned Additional Sessions Judge appears to have been influenced in deciding the complaint on -the basis of what has happened in the absence of the complainant either during the --police investigation or before the Magistrate who passed order on the report of the police. It is my considered view that the Magistrate holding the enquiry under Section 202 Cr..P.C. could not do which the learned Additional Sessions Judge was incompetent to do.

8. Now I have to consider whether the material on record i.e. the statement on oath made by the complainant and the witnesses produced by her it could be said that there was anything intrinsically false in the allegations made in the complaint. It was stated in the complaint and reiterated before the Magistrate that she was forcibly dragged to the nearby 'sahal' and her brother Ahmad was held by other accused. In the hut Jameel and Salabat committed zina with her turn by turn and snatched away the ring and when she was brought out her brother was found tied with a tree and on the` weeping of the complainant the other persons came there, they saw all this and identified the accused/ respondent. These witnesses untied and released Ahmad. The complainant narrated her tale to them and Ahmad also told the witnesses that he was also deprived of the cash and wrist watch by the accused. These facts have been brought on record through the witnesses examined. It is simply unfortunate that the learned Additional Sessions Judge did not appreciate the nature of the allegations. The medical certificate was placed by the complainant/ petitioner which does lend support to her case and was to be further corroborated through the Chemical Examiner's report. The learned Additional Sessions Judge has ignored the fact stated by the complainant that: -- The observation of the learned Additional Sessions Judge that there is no motive is palpably wrong.

9. For all these reasons I hold that the learned Additional Sessions Judge was in error in dismissing the complaint. The impugned order is therefore, set aside and the revision petition is allowed. The matter /complaint is remanded to be proceeded in accordance with law. M.Y.H./395/F.Sh Case remaned.