1994 PLP 2222 (MLD)

A case F.I.R. No.92 of 1991, dated 12-3-1991 was registered at Police Station "D" Type Colony, Faisalabad, under section 365, P.P.C. at the instance of Maqbool Ahmed Malik, complainant/petitioner herein. It was alleged in the F.I.R. that four accused, namely, Muhammad Amer, Muhammad Asghar, Muhammad Afzal and Dr. Shabbir Ahmad, came in a private car the detail of which was not given. Muhammad Amer and Muhammad Asghar were armed with pistols. They called the petitioner from the house of his uncle and took him to a place in Chak No.32/GB on 2-3-1991 at 4-00 p.m. The occurrence was alleged to be witnessed by Liaqat All, Nasir Ahmad, Mubarik All and Abdul Majid. No specific role was assigned to either of the accused. It was stated in the F.I.R. that the above-named accused persons forcibly kidnapped Maqbool Ahmad Malik, complainant to Chak No.32/GB. All the aforesaid accused tortured Maqbool Ahmad Malik and threatened him to pay the amount of 423,000 and also managed to obtain the statement in writing to that effect.

2. It is further alleged that Maqbool Ahmad Malik owed a sum of Rs.23,000 from one Muhammad Arshad and he could manage to ask him to Pay that amount to the accused. In this way they got the said statement written of on the basis of the document procured from him under duress and, thereafter the complainant was allegedly released by the accused on 10-3-1991. TWO days thereafter, the petitioner lodged a complaint with the Police at Police Station "D" Type Colony, Faisalabad, which is located at a distance of two ales from the house of the complainant whereas from the place of occurrence, it is about half far long. The local police investigated the case and after recording the statements of the witnesses under section 161, Cr.P.C. the story was not found to be correct and accordingly the accused were got discharged.

3. The petitioner filed a criminal complaint on the same subject-matter under sections 365-A, 337-A of the Qisas and Diyat Ordinance read with section 506/342, P.P.C. on 20-3-1991 after a lapse of about 15 days from the date of occurrence. The learned Special Judge, Suppression of Terrorist Activities, Faisalabad Division, held a preliminary enquiry and recorded the statements of five witnesses, namely, complainant, Liaqat All, Nasir Ahmad, Mubarik Ali, Ghulam Rasool and Abdul Majid.

4. The petitioner in his cross-examination allegedly supported the complaint, but the learned Special Judge, Suppression of Terrorist Activities Court, after appreciating evidence produced by the complainant-side, recorded a fording of fact that they did not inspire confidence warranting issuance of summons to the accused. It was also held that even otherwise having regard to the facts and circumstances of the case, the case of the petitioner was not covered under section 365-A and, therefore, being not formed part of the schedule to the Suppression of Terrorist Activities Act, 1975, the Court had no jurisdiction to proceed with the trial of the offences.

5. Mr. Hanif Ahmad Dogar, learned counsel for the petitioner argued that the learned Special Judge, Suppression of Terrorist Activities, has misconstrued the provisions of the Schedule, inasmuch as, the allegation against the accused was of kidnapping for ransom and, therefore, the matter was covered by clause (a)(i) of the Schedule. Reliance was also placed on Anwar All Khan v. Wahid Bux 1991 SCMR 1608, to contend that an acquittal order recorded after full-dress trial by a competent Court cannot be equated with an order passed under section 203, Cr.P.C. for dismissing a private complaint which can be dismissed if after holding a preliminary inquiry in the judgment of the Court, there is no sufficient ground for proceeding. The burden of proof in preliminary enquiry under section 203, Cr.P.C. is on the complainant as compared to the burden of proof on the prosecution at the trial of an offence. The prosecution is to prove the case beyond reasonable doubt, whereas the complainant at the preliminary inquiry is not required to discharge heavy burden of proof and appraisal of evidence is also different. Reliance was also placed on Muhammad Saeed and others v. The State and another PLD 1984 Lah. 323, wherein it was reiterated that holding of an inquiry under section 202, Cr.P.C. is not a regular trial for adjudging guilt or otherwise of a person complained against but only an inquiry for fording out as to whether there was available sufficient evidence to put person complained against on trial and not sufficient evidence for convicting him and, therefore, horn! regard to the facts and circumstances of the case, sufficient and prima fac1e case has been made out by the petitioner against the accused, the matter ought to have been decided on merits and in accordance with law by the Special Judge, Suppression of Terrorist Activities and not on the erroneous assumption that the offence allegedly committed by the accused did not fall within the purview of the schedule.

6. After hearing learned counsel for the petitioner and the learned Advocate-General, it is apparent that in the investigation made by the police, the accused were found innocent and the Special Judge after recording the evidence of the witnesses produced by the complainant, came to the conclusion that even a prima facie case had not been made out under section 365-A. Thus visualised, it could at best be a case under section 365 for which there was a remedy for filing a complaint before the ordinary Court.

7. Needless to say that the question of believing or disbelieving the evidence is a matter which falls exclusively within jurisdiction of the Special Court and this Court in the exercise of Constitutional jurisdiction can neither re-appreciate the evidence nor substitute its opinion for that recorded by the Special Court. This question essentially relates to appreciation of evidence which cannot be undertaken in these proceedings. It is not even alleged that the learned Special Judge failed to observe any rule relating to appreciation of evidence.

8. Be that as it may, after recording the preliminary evidence produced by the complainant, no case was made out under any of the sections including section 365-A of the Pakistan Penal Code. The learned Judge, therefore, in substance was right that he should not proceed to prosecute the case any further. The impugned order warrants no interference in these proceedings. Resultantly, the writ petition fails and is hereby dismissed in limine. N.H.Q./M-1737/L Petition dismissed.