1996 P Cr (PLP)

This criminal appeal filed under section 417(2), Cr.P.C. is directed against the order, dated 5-7-1995 passed by the learned E.A.C. (Judicial)/M. I. C., Dera Ismail Khan, vide which the accused/respondents Nos. l to 5 were acquitted under section 249-A, Cr.P.C. in case. F. I. R. No. 180, dated 27-5-1991 registered under section 447/427/507/148/149, P.P.C. at Police Station Saddar, D.I. Khan.

2. Briefly stated, facts of the case in hand are that Ghulam Nabi, appellant herein, had lodged a complaint under the aforementioned sections of law in the Court of Ilaqa Magistrate on 20-5-1991. The said complaint was referred to the S.H.O. Police Station Saddar, D.I. Khan for inquiry under section 202, Cr.P.C. and report. After doing the needful, the S.H.O. finally registered the case referred to above. After completion of investigation, challan was put in Court on 20-8-1991 and the Magistrate after taking cognizance of the case commenced with the trial. After recording statements of four prosecution witnesses, the trial Magistrate came to the conclusion that even if all the P.Ws. be examined, there was no possibility of conviction of the accused/respondents and, therefore, passed the impugned order which is now under challenge through the instant appeal.

3. Arguments of the learned counsel for the parties heard and record of the case scrutinized thoroughly.

4. At the very outset, Mr. Muhammad Khan Khakwani, Advocate appearing on behalf of the State, submitted that the learned Magistrate had no jurisdiction to take cognizance of the case, as the weapon of offence allegedly used in commission of the crime was klashnikov and, therefore, the impugned order of acquittal being without jurisdiction is not maintainable in the eyes of law.

5. I am afraid that it is not the correct legal position. The question of jurisdiction of Special Court shall be decided in the light of the provisions contained in section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter called as the Act). It will be appropriate to reproduce subsection (1) of section 4 of the Act ibid which reads as follows: "Jurisdiction of Special Court.

(1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court. " The offences for which the accused/respondents were charged in the complaint as well as in the F.I.R. are not the offences which have been included in the Schedule. Therefore, the case in hand came out of the jurisdiction of the Special Court and the learned Magistrate had the jurisdiction to take cognizance of the matter.

6. As stated earlier, the appellant had lodged a complaint before the Ilaqa Magistrate who after examining him on oath under section 200, Cr.P.C. referred the matter to the S. H. O. of Police Station Saddar, D. I. Khan for inquiry under section 202, Cr.P.C. and report. The S.H.O. concerned did not abide by the provisions contained in Chapter XVI of the Cr.P.C. as in spite of sending the inquiry proceedings alongwith his report to the Ilaqa Magistrate, resorted to section 156, Cr.P.C. and in consequence thereof registered the case.

7. The choice as to whether a case should be proceeded as a complaint case or as a police case initially rests with the complainant, because it is he who seeks the help of the Magistrate when filing a complaint. The Code of Criminal Procedure has provided two different procedures for the redress of grievances. One is contained in Chapter. XIV where the information is conveyed to an Officer Incharge of the police station in cognizable cases, and the other in Chapter XVI of the Cr.P.C. if he does not resort to police for the redress. In the instant case, no report was lodged with the police, but the complainant has opted to have his grievances redressed through a complaint before the Magistrate. In such circumstances, it was incumbent upon the S.H.O. of the police station (to whom the complaint was marked for inquiry and report) to have investigated into the matter and thereafter have submitted his report alongwith the date collected to the Magistrate. In this view of the matter, the S.H.O. concerned has pre-empted the powers of the Magistrate conferred on him vide Chapter XVII, Cr.P.C. This transgression is deadly opposed to the smooth administration of justice. Reference, in this context, can be made to 1990 ALD 49.

8. The complaint was received by the Magistrate on 20-5-1991. The Magistrate issued the process on 26-8-1991 against the accused Till 5-7-1995, only four witnesses were examined although a period of about four years had elapsed. From the statements of these witnesses, no case of conviction was made I out. In such circumstances, the Magistrate was left with no other remedy but to acquit the accused under section 249-A, Cr.P.C. Learned counsel for the appellant has been unable to show any illegality or irregularity in the impugned order of the trial Court. 9, Learned counsel for the accused/respondents while placing reliance on 1990 SCMR 536; 1990 PCr.Ll.4347 (Karachi) and 1990 PCr.LJ 1549 (Lahore) has opposed the appeal and supported the conclusion arrived at by the trial Court. Nonetheless, Mr. Muhammad Khan Khakwani, Advocate representing the State, has pressed into service PLD 1984 SC 428, but unfortunately the verdict delivered in this case does not favour the prosecution case, rather it supports the version-of the accused/respondents.

10. It has been held in 1995 PCr.LJ Lahore "C" 408 at page 409 that the Courts are reluctant to interfere in an order of acquittal primarily for the reason that after his acquittal an accused earns double presumption of innocence which can only be rebutted if the order of acquittal, on the face of it, appears to be perverse, arbitrary' or illegal.

11. For what has been discussed above, I find no substance in this petition which is hereby dismissed. N.H.Q./1943/P Petition dismissed.