P L D 1998 Lahore 193 (PLP)

The relevant facts for the decision of this I.C.A. are that the appellant and respondent No.l l were married in accordance with Muslim rites and two daughters aged about 9 to 11 years were born out of this wedlock. The appellant filed a Constitutional petition wherein he prayed for recovery of two minor daughters and for setting them at liberty and for registration of case against respondents Nos.6 to 11.

2. The learned Single Judge in Chambers dismissed the petition in limine with the observations that the appellant may file a private complaint while in respect of minors the appellant has a remedy before the Guardian Judge.

3. The learned counsel for the appellant argued that the learned Single Judge in Chamber failed to appreciate that the articles including licensed revolver were to be recovered from the accused, therefore, private complaint was not efficacious remedy. It is added that in any case the order of the learned Single Judge in Chamber is silent on the point of illegal detention of the minor daughters of the applicant.

4. We have given our anxious consideration to the arguments of the learned counsel for the appellant, gone through the record and relevant provisions of Constitution and Cr.P.C. It is a general misconception that in complaint cases the trial Court is not in a position to enforce the recovery of incriminating articles. We have gone through the relevant provisions of sections 190 to 206 of Cr.P..C. and referred to the judgments in the cases of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee AIR (37) 1950 Cal. 437; R.R.Chari v. The State of Uttar Pradesh AIR (38) 1951 SC 207; Badsha Mia and others v. The State PLD 1958 Dacca 598; Azizur Rahman and others v. The State and others PLD 1960 Dacca 631; Ghulam Ahmad v. The State PLD 1962 (W.P.) Lah. 280; Syed Altaf Hussain Shah v. State and another PLD 1966 (W.P.) Baghdad-ul-Jadid 6; Lt.Col. (Retd.) G.M. Nizamuddin v. Irshad Hussain Khan and another PLD 1976 Kar. 653 and The State v. Ch. Altaf Hussain Magistrate Ist Class and others PLD 1978 Lah. 1259. It is clear from the above provisions and precedents that a Court after receiving a complaint under section 190 has to proceed in the following manner:- (i) It may immediately on receipt and without taking cognizance ask the? concerned S.H.O. to register a case; and (ii) If it decides to take the cognizance then it shall proceed to record the? statement of the complainant under section 200, Cr.P.C. The Court after recording the statement may postpone the issuance of process to persons complained against and adopt any of the following modes to find out the truth- (a) proceed with the investigation itself meaning thereby record the? statements of the witnesses of the complainant; or (b) may refer to the matter for investigation to the police or justice of? peace; or (c) may refer the inquiry to any person, who shall have all the necessary powers under the Criminal Procedure Code in view of subsection (3), which reads as under:- "

202. Postponement for issue of process.--(I) (2)??????????????????????????.. (3) If any inquiry or investigation under this section is made by a person not being a Magistrate (Inserted by Law Reforms Ordinance, 1972) or a Police Officer such person shall exercise all the powers conferred by this Code on an officer-in-charge of a Police Station, except that he shall not have power to arrest without warrant."

5. Now in case a Court decides to refer a matter for investigation to the police then the police would be under legal obligation to collect all the evidence about the alleged occurrence complained of. The collection of evidence would include effecting of recovery of the weapons of offence and other incriminating articles like the clothes worn by accused or victim, taking of specimen of signatures, recovery of blood-stained earth and other articles. It is a general misconception that if the complaint is filed, the Court would be helpless to effect the recoveries of incriminating articles made. It is not so. This is merely an apprehension generally expressed without appreciating the scope of the provisions of law referred to above.

6. Now coming to the other argument that the learned Single Judge in Chamber has not dealt with the illegal detention of the minor daughters. The perusal of the order shows that the learned Single Judge in Chamber observed that the appellant has remedy of approaching Guardian Judge. The learned counsel when confronted with this proceeded to argue that the remedy is not efficacious. It is not possible to agree with the learned counsel for the simple reason that the Guardians and Wards Act, 1890 not only provides/caters for the custody but also confers vast powers to order interim custody pending the decision of application under section 25 of the Guardians and Wards Act. This way it provides comprehensive remedies. We may, however, observe here, in order to dispel the apprehension of the appellant as to delay, that in cage he files a petition for the custody of the minors the same shall be expeditiously decided within six months of the service of opposite side while application under section 12 of the Guardians and Wards Act for interim custody shall be decided within 15 days of service of the respondent. These observations have been made not only in the ends of justice but in order to safeguard the interest of the minors.

6. The upshot of the above discussion is that the appeal is dismissed in limine A.A./A-212/L Appeal dismissed