1996 PLP 881 (MLD)

M. Asghar Khan Rokhri for Petitioners. Ch. Anwar Dholan for the State. Malik Ijaz Hussgin Gorcha for Respondent No.2. The petitioners through this writ petition under Article 199 of the Constitution seek that the impugned order, dated 16‑1‑1995 passed by the learned Sessions Judge, Mianwali be quashed and declared illegal, without lawful authority and of no legal effect.

2. The facts of the case are that Mst. Ghulam Fatima respondent No.2 filed a private complaint before the Judicial Magistrate, Mianwali; the learned Magistrate after recording of the preliminary evidence, found prima facie case against Ghulam Muhammad respondent No.3 under sections 435 and 454, P.P.C. 'and opted not to summon others complained‑ against. Mst. Ghulam Fatima, the aforementioned complainant aggrieved by the order, filed a petition under section 439‑A, Cr.P.C.; the learned Sessions Judge respondent No.1 while accepting the criminal revision petition; summoned the petitioners and, other persons complained against under section 148/436/454/149, P.P.C. vide limpugned order, dated 16‑1‑1995.

3. The learned counsel for the petitioners vehemently contended that the learned revisional Court was not competent to summon the persons complained against who stood exonerated under sections 203 and 204, Cr.P.C.; at the most the learned Court could have passed an order under section 436, Cr.P.C. to make further inquiry into the complaint; while the learned counsel for the respondents assisted by the State Counsel conversely controverted the arguments of the learned counsel and supported the impugned order as the evidence recorded by the learned trial Court was not properly appreciated and the order of the learned trial Court suffered from material irregularities.

4. I have heard the arguments advanced by the learned counsel for both the sides at length and have perused the record with their able assistance.

5. The question, which arises out of the petition and needs consideration is whether the proviso to section 436, Cr.P.C. can be invoked in the event of dismissal of the complaint under section 203/204, Cr.P.C.

6. It would be appropriate to reproduce section 436 of the Code of Criminal Procedure for readi reference‑‑ "

436. On examining any record under section 435 or otherwise, the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate may himself make or direct any subordinate Magistrate to make further inquiry into any complaint which has been dismissed under section 203 or subsection (3) of section 204."

7. The bare reading of the provision of section 436, Cr.P,C. empowers the Court while exercising powers under section 435/436, Cr.P.C. to direct the subordinate Court to further inquire into the complaint which has been dismissed under section 203 or subsection (3) of section 204, Cr.P.C.; the object of the proviso to section 436, Cr.P.C. as observed in case Mst. Bashir Begum and 2 others v. Ghulam Nabi and another PLD 1972 Lah. 185; is to safeguard the legitimate interests of persons discharged in a complaint case; as the position in case of dismissal of the complaint under section 203, Cr.P.C. is quite different inasmuch as the person arraigned was an accused in the complaint; so dismissal stands on a much higher footing. In case in hand the learned Magistrate taking cognizance of the matter never considered it necessary to issue process against the petitioners and others for the reasons that no sufficient, grounds for proceedings against them were made out; while the learned Sessions Judge observed that from the face of it no distinction could possibly be drawn by the learned Magistrate in summoning Ghulam Muhammad respondent No.3 while leaving out the remaining accused persons on the basis of the same evidence. Relevant provisos of section 203 reads as follows:‑‑ "

203. The Court before whom a complaint is made or to whom it has been transferred, or sent may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under section 202 there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing "

8. The learned Sessions Judge could not reverse the order in exercise of the combined and effect under section 435/436, Cr.P.C. read together; rather could only direct further inquiry under section 436, Cr.P.C. leaving the matter to the inquiry Magistrate to determine whether or not the evidence recorded in the inquiry justified summoning of the petitioners etc and to be put on trial. It is well‑settled that the Magistrate can, after a remand by the Sessions Judge under section 435/436, Cr.P.C can summon the accused without any further inquiry; further, if in the remand order there is a direction for further inquiry prior to the summoning it shall be obeyed.1ln case Fazal Karim and others v. Muhammad Boota and another 1991 SCMR 215 7 it was observed by their Lordships that under section 435/436, Cr.P.C. the dismissals under sections 203 and 204(3), Cr.P.C. can be reversed by the Sessions Court/and or by the High Court and a "further inquiry" can be ordered.

9. In view of the dictum laid down in case Fazal Karim and others v. Muhammad Boota and another 1991 SCMR 2157 supra and Anwar Ali Khan and others v. Wahid Bux and others 1991 SCMR 1608, the order of the learned Sessions Judge is beyond jurisdiction and is hereby set aside and the case is remanded to the learned Sessions Judge to issue directions as envisaged in section 436, Cr.P.C. for further inquiry into the complaint. Disposed of. N.H.Q./M‑4/L Case remanded.