P L D 2009 Lahore 444 (PLP)

SYED SHABBAR RAZA RIZVI, J.

I propose to decide Criminal Revision No.468 of 2008 and Criminal Revision No.466 of 2008 together by this single order as impugned order is same in these criminal revisions. Parties are also same in both petitions. Both the learned counsel have challenged the order of the learned Additional Sessions Judge, dated 2-7-2008.

2. The brief facts arc that respondent No.2 approached the S.H.O. for registration of an F.I.R. After her failure, respondent No.2 filed an application before the learned ex-Officio Justice of Peace under section 22-A(6), Cr.P.C. who passed an order for registration of the F.I.R. on 9-2-2008. However, the said F.I.R. No. 106 of 2008 registered at Police Station Saddar, under section 337-A(i),(ii), 337-F(i), 337-L(ii), 354, 452, 148 and 149, P.P.C. was cancelled. Thereafter, a private complaint was filed by respondent No. 2, wherein Impugned order, dated 7-2-2008 was passed after examining the complainant upon oath and fulfilling the other requirements. Prior to the impugned order, on 28-9-2008, Mr. Imran Nazir, Judicial Magistrate 1st Class, Sheikhupura completed inquiry and observed as under:-- "I am of the opinion that the alleged offences prima facie made out and the instant complaint needs regular trial. Report is submitted. The inquiry was entrusted to the learned Magistrate vide order, dated 15-4-2008 by Mr. Tariq Mehmood Malik, learned ASJ, Sheikhupura.

3. The impugned order which is in Urdu, reads as under:

4. The impugned order manifestly reveals that after receiving the report and inquiry as well as hearing the arguments of respondent No.2, and considering the initial evidence recorded by the learned Addl. Sessions Judge and the learned Magistrate during the inquiry, prima facie, there were sufficient grounds for proceedings, hence, bailable warrants of Rs.30,000 each were issued.

5. According to section 204, Cr.P.C. to be read with section 203, if after considering the statement on oath of the complainant and the result of the investigation or inquiry (if any) under section 202, Cr.P.C., there are sufficient grounds for proceedings, the Court may issue summons for the attendance of the accused persons or warrants, as the case may be. Considering the impugned order in conjunction with language of sections 203 and 204, Cr.P.C. I do not find any illegality and irregularity in the impugned order.

6. According to the learned counsel for the petitioners in Criminal Revision No.468 of 2008, the petitioners are Wapda employees and are responsible persons. The F.I.R. No. 106 of 2008 which was registered at Police Station Saddar at the instance of respondent No.2 was thoroughly investigated. During the course of investigation, petitioners were found innocent, therefore, there was no justification to file a complaint or to pass the impugned order. According to him, the complaint was filed for mala fide reasons as one of the accused in the private complaint was a complainant in one of F.I.Rs. registered against the husband of respondent No.2. According to hint, the learned Additional Sessions Judge did not pass a speaking order as no reason was mentioned in the impugned order, dated 7-2-2008.

7. According to the learned counsel for the petitioners in Criminal Revision No.466 of 2008, the complaint is based on mala fide The respondent No.2 is prejudice person as P.I.R. No. 77 of 2008, registered at Police Station Saddar was registered against respondent No.2's husband on the complaint of the petitioner. The learned counsel further submitted that required permission was not obtained as required under section 196, Cr.P.C. He referred to 2006 PCr.LJ 902 and PLD 1996 Karachi

669. Both the above mentioned judgments require mandatory compliance of provisions of section 196 Cr.PC. The reliance of the learned counsel is misplaced as section 196, Cr.P.C. itself points out cases in which it is applicable. Section 196 reads as under:-- "No Court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Pakistan Penal Code (except section 127), or punishable under section 108-A, or section 153-A or section 294-A, or section 295-A or section 505 of the same Code, unless upon complaint made by order of or under authority from, the Central Government or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments." Thus, the above judgments are not attracted in the facts and the circumstances of this case. Similarly, reliance placed by the learned counsel for the petitioner in Criminal Revision No.468 of 2008 on PLD 1970 SC 173, 2001 SCMR 1738 and 1991 SCMR 1608 have been examined/considered, they are not attracted to the facts and circumstances of the instant case.

8. On the other hand, the learned counsel for respondent No.2 and the learned Deputy Prosecutor General, Punjab submitted that preliminary inquiry was conducted by a Judicial Magistrate before issuance of impugned order; the police officials were not ready to register a case despite the fact that complaint of the respondent No.2 disclose commission of a cognizable offence; respondent No.2 had to resort to the jurisdiction provided under section 22-A(6), Cr.P.C., the examination of the complainant/respondent No.2, report of the inquiry etc. disclosed sufficient grounds for proceedings, therefore, the learned Addl. Sessions Judge issued impugned order after fulfilment of required pre-requisite/conditions under section 204, Cr.P.C. To substantiate his submission, the learned counsel for the respondent No.2 referred to PLD 2007 SC 9, Noor Muhammad v. State In the precedent case, police had cancelled the F.I.R. after two investigations. Thereafter, the complainant filed complaint. The Court, after its satisfaction about the existence of a "prima facie" case, issued process against the accused persons, like in the instant case impugned order has been passed. The impugned order/issuance of process was challenged before the learned High Court through a revision petition. The revision petition was accepted and order for issuance of summons against respondents was set aside. The said order of the High Court was challenged before the Hon'ble Supreme Court. The Hon'ble Supreme Court observed that section 204 deals with .he issuance of process. According to this section the Court shall issue the process if in its opinion there is "sufficient ground" for proceeding and an appropriate process may be issued in the form of summons or warrants to the person complained against. The Hon'ble Court further expressed itself, "However, the Court It not certain about the truthfulness or otherwise of the complainant, then on postponement of the issuance of process, for which reasons will have to be recorded, it may direct investigation/inquiry to be conducted in order to ascertain the truth or falsehood of the complaint and after arriving at a conclusion in either way, the Court then, may proceed either under section 204 for the issuance of process or under section 203 dismiss the complaint. The proceeding under section 204 or 203 depends upon the existence or non-existence of sufficient ground which have been taken by the Courts as the existence of "prima facie" case, the two expressions i.e. the existence of "sufficient ground" and "prima facie" case have been construed by the Courts interchangeably. In the case of Sher Singh v Jatendranath Sen (AIR 1931 Calcutta 607), it was held "a prima facie case only means that there is ground for proceeding. It is not the same thing as proof which comes later when the Court has to find whether accused is guilty or not guilty."

9. In the same judgment, the Hon'ble Court further elaborated its vision on the point lucidly, in the following words:-- "There is a marked distinction as to the approach of appraisal of material on record i.e. averments made in the complaint and the statement made on oath by the complainant, at the time of holding of a preliminary inquiry for determining as to whether the process to be issued against the accused or not and at the regular hearing of the criminal case leading to determining the guilt or innocence of the accused. The Court is not expected to examine the material minutely at the stage of issuance of process under section 204 whereas at the stage of trial it appraised the evidence thoroughly and record its findings on the basis of such appraisal and that any benefit of doubt arising out of such inquiry should be given to the accused."

10. In a criminal revision, this Court is required to see if any illegality or irregularity is committed by the Courts below. After considering the arguments of the learned counsel for the parties and examining all the documents they alluded to, I do not find any illegality or irregularity in the impugned order. As a result of above, both criminal revision are dismissed.

11. However, as an obiter dicta, it may he hinted at, Court decide cases in accordance with law, and on facts and circumstances of each case. N.H.Q./A-74/L Petition dismissed.