P L D 1959 (W (PLP)

Messrs A. A. Anwar and Rana Maqbool Ahmad for Respondents. Date of hearing : 4th. June 1959. In an encounter with the police, one Ahmad Sher, of Dhok Gujran, was killed at about 5‑30 p.m., on the 16th of November, 1957. A report to that effect was entered in Khushab Police Station on the same day at about 6 p.m., by Muhammad Yasin Khan Assistant Sub‑Inspector, Nowshera. From the material available on the file, I gather that an application was made by Fateh Sher, the father of Ahmad Sher deceased, on the 23rd of November 1957, to District Magistrate Shahpur at Sargodha, that his son had been deliberately murdered, and therefore, the police officials who had fired at him and killed him should be brought to book. This application was sent for inquiry to a Magistrate who started recording the evidence of witnesses on the same day. Before he actually submitted the report, Fateh Sher made a regular complaint under section 302/34, P. P. C., against Muhammad Yasin Khan, A. S. I., Rab Nawaz, Fazal Muhammad and Abdur Rahman Constables and a certain medical officer stationed in Nowshera without specifying his name. The statement of the complainant was recorded on the 6th of December, 1957, and the complaint was sent to the Sub‑Divisional Magistrate Jauhar Abad for inquiry under section 202 of the Criminal Procedure Code. This Magistrate, however, made a report about the incident in question on the 25th of December, 1957. As is quite clear from the report itself, the inquiry by this Magistrate was not conducted in pursuance of the order of the Additional District Magistrate sending the case to him under section 203 of the Criminal Procedure Code for a preliminary inquiry. It was made as a result of the applica tion of the father of the deceased made previously. A part from that, it was conducted in the absence of Fatteh Sher, the father of the deceased, and for this reason the learned Additional District Magistrate Sargodha by his order dated the 17th January 1958, sent the case to the Revenue Assistant to hold a fresh inquiry in the matter after giving due notice to the petitioner and the police. The Revenue Assistant sent the case back on the 23rd of January, 1958, by making the following observations :‑ "May I beg to submit that this inquiry will amount to holding of inquest which is a judicial proceeding under section 174, Criminal P. C. I am not acting as a Judicial Magistrate and the proceeding by me would be irregular. P. P.'s opinion may kindly be had on this point. "Secondly I may also point out that the S. D. M., who had conducted the inquiry has been transferred and the new S. D. M., has taken over charge today. In view of this change I may suggest that the case may be sent for inquiry to the new S. D. M., who is a judicial Magistrate. " The counsel for the applicant is present and has been directed to appear before the District Magistrate today."

2. Thereafter on the 12th of February, 1958, the case was sent for inquiry under section 202 of the Criminal Procedure Code to Malik Ahmad Khan, who directed the complainant on the 17th of February 1958, to produce his witnesses before him at Qaid Abad on the 8th of March 1958. On this date, Malik Ahmad Khan submitted the report that the case had been called several times, but no one was present, nor were the witnesses produced before him. He observed that a full inquiry had already been made by his predecessor Mr. Ijlal Hussain who had submitted his report, and as the complainant did not appear on that date, nor did he produce his witnesses, therefore, he was indulging in delaying tactics and there was no necessity of proceeding in the case any further.

3. The learned Additional District Magistrate dismissed the complaint on the receipt of the above report on the 28th of April, 1958. The main reason which led him to pass the order of dismissal was that the Sub‑Divisional Magistrate Jauhar Abad had made an inquiry under section 176 of the Criminal Procedure Code about the cause of the death of Ahmad Sher and that he had given his finding that the death of the deceased was the result of the encounter with the police for which the police had registered a case and that the Sub‑Divisional, Magistrate had come to the conclusion that the police's version was correct and that the deceased was fired at by the police in self‑defence. The learned Additional District Magistrate went on to say that the present Sub‑Divisional Magistrate had reported that the complainant in spite of having been given opportunity to produce his witnesses, had failed to do so, and that he himself did not care to attend the Court, and therefore, it appeared to him that he had been indulging in delaying tactics, and there was no evidence to support his allegations.

4. A revision was filed against the above order before the learned Sessions Judge Shahpur who dismissed it on the 11th of June, 1958.)

5. Fatteh Sher has now come up on revision to this Court.

6. Under section 200, Criminal Procedure Code, subject to certain exceptions mentioned in the section itself, when a complaint is made to a Magistrate, he shall at once examine the complainant on oath and reduce the examination to writing which must be signed by himself as well as by the complainant. He may issue the process to the accused person at once, but it is also open to him to postpone the issue of the process for compelling the attendance of a person complained against for reasons to be recorded in writing and make a preliminary inquiry into the case either himself or through a Magistrate subordinate 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. Under section 203 of the Criminal Procedure Code, the Magistrate can dismiss a complaint by writing his reasons briefly, but only after considering the statement on oath of the complainant and the result of the investigation or inquiry, if any, conducted under section 202 of the Criminal Procedure Code. If the Magistrate taking the cognizance of the case, before issuing the process a referred to in section 202 of the Criminal Procedure Code, orders a preliminary inquiry, then, in my view, he cannot dismiss the complaint under section 203 of the Criminal Procedure Code, unless the result of the investigation or inquiry is submitted to him. If the Magistrate or the person to whom the inquiry is entrusted does not inquire into the facts leading to the commission of the offence at all, but makes his report to the Magistrate taking cognizance of the case that the complaint should be dismissed because of the delaying tactics of the complainant, then the Magistrate taking cognizance of the case cannot be considered in the eye of the law to have "the result of the investigation or inquiry before him" in order to entitle him to dismiss the; complaint under section 203 of the Criminal Procedure Code. I can imagine cases in which the complainant, in spite of he opportunities granted to him, declines to appear before the Magistrate or the person inquiring into the matter or produce evidence before him, but then in that case, such Magistrate orb officer has to make a report that no evidence has been producing before him, showing that the accused person has committed the, offence. 1t is then for the Magistrate taking cognizance of the case to decide whether the complaint should be dismissed for lack) of evidence or remitted back for inquiry or investigation. III is, however, of utmost importance that the Magistrate or the person who has been asked to investigate into the matter under section 202 of the Criminal Procedure Code before submitting the report should give full and ample opportunity to the complainant to prove his allegations. This opportunity will be, all the more necessary where the person complained against is public officer or other public servant. In the case in hand, Malik/ Ahmad Khan, to whom the inquiry under section 202 of the Criminal Procedure Code was entrusted, called upon the com plainant to produce his witnesses before him at Qaid Abad on the 8th of March 1958. On that date, the complainant did not appear before him at Qaid Abad where the learned Magistrate was camping, but he did appear in his Court at the headquarters and submitted an application that he was present in Court with his witnesses and had no knowledge that the Magistrate would be at Qaid Abad instead of his Court room at Jauhar Abad. Malik Ahmad Khan was cognizance of the fact that it was the first opportunity afforded to the complainant to produce his witnesses. If the complainant had failed to do so he should have realised that it was proper to grant the complainant another opportunity to produce the witnesses instead of at once drawn an adverse inference from the absence of the complainant and submitting his report to the Additional District Magistrate. In the present case, however, I feel fully convinced that there was a genuine mistake on the part of the complainant with regard to the place where he bad to produce his witnesses. It is possible that the Magistrate had asked the complainant to produce his evidence at Qaid Abad, but the complainant understood him to say that he was to produce his witnesses at Jauhar Abad, because both words, curiously enough, are pronounced in the same away. The bona fide of the complainant is quite clear from the fact that he did appear in Jauhar Abad and submitted an application on the same day.

7. Both the Magistrates, i.e., the Magistrate taking cognizance of the case and the Magistrate submitting his report, have made a reference to the report submitted by the Sub‑Divisional Magistrate, Jauher Abad, on the 25th of December, 1957. This report was the result of the investigation carried out in the absence of the complainant. It is said that this report was made either under section 174 of the Criminal Procedure Code, which deals with the police inquiries and reports in cases of suicide, or where a person has been killed by another, or by an animal, or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, or it was an investigation under section 176 of the same Code, where a person has died while in the custody of the police, and the inquiry is made by a Magistrate into the cause of his death. I doubt very much if the report submitted by the Sub -Divisional Magistrate was under anyone of these two sections. But granting for the sake of argument that it was the learned Magistrate dismissing the complaint under section 203, Criminal Procedure Code, could not possibly look into it or dismiss the C complaint on the basis of such a report. He could only dismiss the complaint by looking at the complaint and the statement of the complainant on oath, and the report, and nothing else. It is really amazing to find that the police was exonerated on the ground that they had killed the deceased in the exercise of the right of private defence a matter which is not covered either by section 174 or section 176 of the Criminal Procedure Code. It is a matter which has to be decided by a Court of competent jurisdiction as to whether A committed the murder of B in exceptional circumstances mentioned in the Penal Code, or in any other relevant law. So far as the impugned' order of the learned Magistrate is concerned, I think it is completely erroneous and had been based on extraneous considerations. It is hereby set aside and the complaint is sent back to the District Magistrate Shahpur, who should take cognizance of the case himself and proceed with it in accordance with law, or transfer it to some other Magistrate subordinate to him for the purpose. K. B. A. Order set aside.