1999 P Cr (PLP)

With reference to the impugned order the learned counsel for the applicant has agitated only one ground that the trial Court while passing the impugned order has travelled much beyond the limited scope of enquiry as required in a complaint under section 200, Cr.P.C., and the order passed by the trial Court under section 203, Cr.P.C., which is based on other material than statement of complainant and his witnesses recorded during the process of enquiry under section 200/202, Cr.P.C., is not warranted by law and liable to be set aside. Learned counsel for the applicant with reference to this contention referred to the impugned order and attempted to show that the trial Court has completely ignored the limited scope of enquiry in the matter and has decided the complaint as a final order in a criminal case. Lastly the learned counsel submitted that the impugned order is full of presumptions and conjectures, the same has been passed without affording any opportunity to the complainant to prove his case and, thus, liable to be set aside. He placed his reliance on the case‑law reported as:‑‑ Muhammad Saced and 3 others v. The State and another PLD 1984 Lah. 323 and Ali Jan v. The State 1990 MLD 2076. Mr. Sher Muhammad Shar, learned A.A.‑G. for the State did not controvert these arguments and submitted that the trial Court for the purpose of dismissal of complaint has taken into consideration all other material, except the statements of the complainant and his other witnesses which were recorded during the process of proceedings under section 200/202, Cr.P.C. Learned A.A.‑G. further submitted that such statements were the basis for the trial Court to make a tentative assessment of truth or falsehood of the complaint but the same have been ignored by the Court for the reason that the witnesses examined were interested. For these reasons the learned A.A.‑G. has not supported the impugned order. Mr. Khawand Bux Mahar, learned counsel for respondents Nos.2, 4 and 5 has strongly supported the order of the trial Court and submitted that the complaint was filed by the applicant merely to cause harassment to the private' respondents, who were serving in the police department and have taken action against the complainant party in performance of their official duty. The learned counsel further submitted that the order passed by the trial Court is a speaking order and cogent reasons have been assigned for dismissal of the complaint and, therefore, the same may be maintained. I have considered the submissions made at the Bar. First of all it will be seen that what is the scope of proceedings under Chapter XVI of Criminal Procedure Code, which deals with complaint. Such discussion has been made by a learned Judge of this Court in the case of Abdul Kareem v. Noor Muhammad and 3 others 1990 MLD 2073 in the following words:‑‑ "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 such. Section 201, Cr.P.C, lays down the procedure to be adopted by a Magistrate who is not competent to take cognisance. 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 for issuing process under section 204, Cr.P.C." Further from the language of section 202, Cr.P.C. it is clear that on receipt of complaint, power to hold enquiry has been left at the discretion of the Court and the scope of such enquiry or investigation is confined to the extent of ascertaining the truth or falsehood of a complaint on the basis of proceedings as prescribed under this section. About the scope of an order under section 203 or 204, Cr.P.C. a learned Single Judge of this Court in the case referred above has observed as under:‑‑ "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. 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." In another decision reported as Muhammad Saeed and 3 others v. The State and another PLD 1984 Lah. 323 the scope of enquiry under section 202, Cr.P.C. was examined with following observations:‑‑ "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." From the above discussion it is clear that in the instant case the trial Court while passing the impugned order has exceeded the scope of the inquiry and instead of examining the existence of a prima facie case, decided the matter in a manner as if a final adjudication was being made. Due to this illegality committed by the trial Court the complainant was deprived of a full opportunity to participate in the proceedings and to prove his case on the basis of allegations contained in his complaint. The perusal of the statement of the complainant Muhammad Akram and his witnesses Muhammad Aslam, Mushtaque Ahmed, Aftab Ahmed and Altaf Ahmed recorded under section 200/202, Cr.P.C. reveal that a prima facie case against the private respondents was made out for the purpose of further proceedings in the matter. As a result, this revision application is allowed and the impugned order, dated 29‑4‑1997 is set aside. Now the case will go to the trial Court of Special Judge Anti‑Corruption, Sukkur for further proceedings. H.B.T./M‑382/K Revision application allowed.