1973 P Cr (PLP)

Ch. M. Iqbal for Petitioner. Syed Ali Raza for Respondents. Date of hearing : 7th July 1972. This is a Revision against the order of Ch. Muhammad Islam, Magistrate Section 30, Lyallpur, dated 18-10-1972 whereby be dismissed the complaint under section 307/347134, P. P. C. filed by the petitioner against the respondents and the order of Mr. Muhammad Amir Malik, Additional Sessions Judge, Lyallpur, dated 12-2-1972 whereby he dismissed his revision against the above noted order.

2. The facts alleged by the petitioner in his complaint briefly are that he had saved one Muhammad Aslam weaver from the respondents which was resented by them. As a result they armed themselves with lathis and takwas and gave a beating to the peti tioner. The takwa was used by Mehboob Alain respondent, who gave a blow with its blunt side on his head. The police declined to register a case on his report and instead registered a case against him. He was thus obliged to file the complaint. The learned trial Magistrate recorded the statement of the complainant (petitioner) and then referred the matter to the police for inquiry under section 202, Cr. P. C., without record ing any grounds. The police in its report dated 26-9-1971 stated that there was a fight between the parties in which simple injuries had been caused and that the inquiry had revealed only the commission of an offence under section 323, P. P. C., which is not cognizable by the police. The learned trial Magistrate there upon dismissed the complaint by his order dated 18-10-1971. The petitioner went up in revision, which was dismissed by the learned Additional Sessions Judge, Lyallpur, on 14-2-1972. Hence the present revision petition.

3. The learned counsel for the petitioner contended firstly, that the Magistrate was bound under the law to have given reasons for referring the case to the police under section 202, Cr. P.C. He contended further that the learned trial Magistrate implicitly relied on the police report without even considering the statement of the complainant recorded by him earlier. He argued that the omission to look at the evidence before him and placing reliance only on the police report renders the order illegal. In support of this contention he relied on Abdd Majid v. M. D. Mansur Ali and 14 others (1969 P Cr. L J 692) and Sufi Muhammad Sadig v. Lal Muhammad Khan and another (1968 P Cr. L J 637).

4. I have carefully considered the judgments of the two Courts below, the evidence on the record and the contentions raised by the learned counsel in the light of the above noted authorities. Section 202 (1), Cr. P. C. reads as follows:

202 (1).-Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either enquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation tea be made by any Magistrate subordi nate to him or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint: It will be noticed that the section requires that the trial Magistrate while referring the case to the police under the said section must give reasons for doing so. In Jagindar Singh v. Agha Safdar Ali Khan (A I R 1928 Lah. 88) Mr. Justice Fforde held that while considering the correctness or legality of an order under section 201, Cr. P. C. set the same aside, inter alia, on the grounds that the Magistrate had not stated in writing his reasons for referring the matter to the police. Moreover, I notice from the impugned order passed by the learned trial Magistrate dismissing the petitioners' complaint that while doing so he did not take into consideration the allegations made by the complainant in his statement recorded by himself and simply relied on the police report. In Abdul Majid v. M. D. Manzur Ali arid 14 others it was held that the private complaint cannot be dismissed under section 203, Cr. P. C. merely on the basis of a police report without examining the complainant on oath and con sidering his statement which is to be recorded by the concerned Magistrate during the preliminary inquiry. 1n the cited case the Magistrate had failed to record the statement of the complain ant. In the present case, however, the complainant's statement was recorded but was not considered by the learned Magistrate. The principle enunciated in the above noted case, therefore, applies to the present case. Apart from this a reading of the police' report shows that, according to the police, the facts disclose the commission of an offence under section 323, P. P. C. The learned Magistrate was, therefore, not justified in dismissing the complaint against the respondent outright because, even according to the police report an offence had been made out against the respondent.

5. I, therefore, feel that the order of the learned Magistrate dated 18-10-1971 dismissing the petitioner's complaint is not correct and set aside the same. I also set aside the order of the learned Additional Sessions Judge, Lyallpur dated 14-2-1972 upholding the above-named order of the learned Magistrate. As a result I accept the petition and remand the case to the learned trial Court to proceed in accordance with law. Revision accepted. Case remanded.