2004 PLP 967 (YLR)

The complainant was examined in preliminary enquiry also two witnesses namely Muhammad Uris and Haji Ali Hassan to prove the prima facie case. The said Court also summoned file of Crime No. 16 of 2000. As per F. I. R. No. 16 of 2000 it shows that the case was registered against son of complainant Muhammad Panjal and his three relatives for causing the death of Riaz Hussain son of Nadir Ali (respondent No.4). The learned Additional Sessions Judge evaluated the evidence and examined the police papers of Crime No. 16 of 2000. It was observed by the learned Additional Sessions Judge. Ratodero that during investigation three persons of Lashari community were examined who stated that the complainant has managed firing and had staged drama of setting his house on fire to falsely implicate the proposed accused Nos. 1 to 4 in order to pressurise them. The said Court also disbelieved the evidence of P.Ws Mohammad Uris and Haji Ali Hassan and it is observed that the F.I.R. was lodged against the respondents as to harass them as a counterblast of F.I.R. No.16 of 2000 lodged on 12-4-2000 in respect of commission of murder of Riaz Hussain. The direct complaint was dismissed under section 203, Cr.P.C. on 9-1-2003 by the learned Additional Sessions Judge, Ratodero, hence this revision application. Mr. Ali Murad Abro, learned counsel for the applicant/complainant has contended that the complainant and P. Ws. Haji Ali Hassan and Mohammad Uris has fully supported the version of prosecution case and prima facie case was made out but the process was not issued against the respondents, as the learned Additional Sessions Judge has not applied his mind judiciously and the said Court has placed his reliance on the statements of three witnesses of Lashari communities. The Investigating Officer had not conducted the investigation, properly and disbelieved the prosecution version and extended concession to the respondents Nos.1 to

4. It is further urged by the learned counsel that the respondents Nos.5 and 6 in connivance of respondents Nos.1 to 4 destroyed the evidence, therefore, they are also equally responsible. Mr. Ali Murad Abro, learned counsel for the applicant has read out the statements of the complainant and prosecution witnesses and the impugned order to show that a prima facie case is made out against the respondents and the impugned order, dated 9-1-2003 is liable to be set aside. In support of his proposition, he has relied upon the following case-law: 1991 SCMR 1608; 1994 PCr.LJ 1752; 2001 PCr.LJ 601; 2000 SCMR 499 and 1998 SCMR

922. Mr. Muhammad Ayaz Soomro, learned counsel appearing on behalf of respondents Nos. 1 to 6 has supported the impugned order. It is urged that Riaz Ali son, of Nadir Ali was murdered on 12-4-2000 and an F.I.R. was lodged being Crime No. 16 of 2000 at Police Station Ketti Mumtaz Bhutto and son of the applicant/complainant are accused who are facing trial in the Court of law and the applicant/complainant managed this incident to involve them in a false case as a counterblast to pressurize them. It is further pointed out that F.I.R. No.27 of 2000 lodged by the applicant/complainant was withdrawn from the Investigating Officer only on the ground that the notion of the complainant was beyond comprehension and appeared to be illogical to local police and many questions were raised, therefore, looking to the circumstances of the case and its gravity the investigation was entrusted to a Senior Police Officer of a Gazetted Rank i.e. D.S.P./S.D.P.O. Saddar (Amir Abbas Shah), Larkana, who conducted the investigation with hactive steps day to day and purely on merits because local police was not convinced and had a biased view. In the light of investigation conducted by the D.S.P./S.D.P.O. respondent No.6 (Amir Abbas Shah) the case was disposed of as false as per merits and on his recommendation as he collected and brought independent evidence on record. The case was disposed of by S.S.P., Larkana (Shahid Iqbal) respondent No.5. It is further urged by the learned counsel that the complainant's allegation that the accused persons took him towards jungle, but he hoodwink to them and escaped from their clutches. It is pointed out that the complainant is present in the Court and he is old one and it was impossible for him to get released himself from the clutches of the four -respondents and he himself put his house on fire and allegations are dubious. Mr. Soomro further submits that in the statements of the complainant recorded in preliminary enquiry and the other witnesses namely Mohammad Uris and Haji Ali Hassan examined during the preliminary enquiry to prove the prime facie, the names of Shahid Iqbal and Amir Abbas Shah have not been cited as an accused for the commission of the offence alongwith the other respondents Nos. 1 to

4. Mr. Mushtaque Ahmed Kourejo, learned Advocate appearing on behalf of Addl. A.-G has supported the impugned order and submits that the revision application is liable to be dismissed on the ground that F.I.R. No.16 of 2000 was lodged on 12-4-2000 at Police Station Ketti Mumtaz Bhutto regarding the murder of Riaz and the sons of applicant/complainant are nominated accused. It is pointed out by the learned State counsel that no part for commission of the offence against the respondents Nos.5 and 6 have been assigned, but on the contrary the respondent No.6 Amir Abbas Shah has conducted the investigation of Crime No.27 of 2000, which was recorded on 17-9-2000 and due investigation was made by the said respondents and case was disposed of as false in `B' class and the investigation conducted by the D.S. P., Larkana was approved by the respondent No.5 (Shahid Iqbal S.S.P., Larkana). The applicant/complainant has joined them that in connivance of respondents Nos. 1 to 4 destroyed the evidence, therefore, they are equally responsible for the commission of the offence. I have heard the learned counsel for the respective parties and examined the material placed on record and the case-law cited at the bar. It is evident that the learned Additional Sessions Judge, Ratodero after holding preliminary enquiry dismissed the complaint by assigning the reasons for its dismissal the said Court has taken into consideration the pre-requisite condition while dismissing the complaint and assigned the reasons, which could appeal to a reasonable and prudent mind. The impugned order is based on proper appreciation of evidence, legal and appropriate order has been passed by assigning the reasons. As per evidence of the prosecution, respondents Nos.5 and 6 have not been named as an accused of commission of the offence or the respondents Nos.5 and 6 in connivance of respondents Nos.1 to 4 has destroyed the evidence. It may also pointed out that the opinion of the Investigating Officer is not binding on a Court nor the finding of the Investigating Officer is a legal evidence. The Court can disagree with the police and can ask for further enquiry and investigation, but the applicant/ complainant after decision of the case by the investigating agency filed a direct complaint in the Court having jurisdiction and adduced the evidence for issuance of the process, but the learned Additional Sessions Judge has concluded that the applicant/complainant has failed to make out a prime facie case against the respondents. The evidence of P.Ws Muhammad Uris and Haji Ali Hassan was not believed only on the ground that two sons of the applicant/complainant are facing trial in F.I.R. No. 16 of 2000 registered at Police Station, Ketti Mumtaz Bhutto regarding the killing of Riaz son of respondent Nadir Ali. According to the evidence, there is no other eye-witness of the incident of firing on the complainant. If two persons armed with K.Ks and two with guns came armed in the house of applicant/complainant to take revenge, they could easily achieve their object. It is alleged by the complainant that Ghulam Shabir had fired burst of K.K. on him, but he did not sustain any injury, but no other person attempted to fire upon him to achieve the object. There was no reason to abduct the complainant when they could cause his death immediately at the alleged place of occurrence. The applicant/ complainant is present in the Court, who has come forward in front of the Court, he is aged about 60/65 years old and at that time accused/respondent No.1 Ghulam Shabir fired a K.K. burst upon him in order to kill him, but he escaped without sustaining injuries, then they over-powered him and took him to the jungle where he hoodwink them and escaped. This notion of complainant was beyond comprehension and appeared to be illogical. During the course of investigation, the investigation was entrusted to Senior Police Officer of a Gazetted rank of D.S.P./S.D.P.O. Saddar, Larkana with direction to conduct the investigation purely on merits and consequently the case was disposed of as false and on his recommendation as collected and brought independent evidence on record. On the basis of investigation, the case was disposed of as `B' Class and the applicant/complainant has joined Amir Abbas Shah and Shahid Iqbal, S.S.P., Larkana as an accused in the main offence that in connivance of the respondents. Nos.1 to 4 they had destroyed the evidence, therefore, they are equally responsible for the commission of the offence. Section 203, Cr.P.C. provides that the Court before whom a complaint is made or to whom it has been transferred, or sent, may dismiss the complaint if after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under section 202, Cr.P.C. Learned Additional Sessions Judge has recorded his reasons for its dismissal. In the case of Ms. Zeba Bakhtiar v. Arshad Sami Khan (1998 SCMR 922), it has been held by the Hon'ble apex Court as under:-- "The object of holding an enquiry under section 202, Cr.P.C. is limited to find out existence of a prima facie case. At this stage, neither the accused is present before the Court nor the witnesses are subjected to cross-examination. The Court has before it only one-sided, unchallenged version of the complainant. No doubt, one of the objects of holding a preliminary enquiry under section 202, Cr.P.C. by the Court, is to avoid issuance of process to the accused in a fit case but to achieve this object the Court cannot overstretch the proceedings so as to convert the preliminary enquiry into a full- fledged trial of the case. The Court is required to determine the exercise or otherwise of the prima facie case at this stage, on the basis of the evidence produced by the complainant. The possibility of the accusation turning out to be false or frivolous at the trial, should not overbear the Court from issuing the process, if the unchallenged testimony of the complainant prima facie discloses a case against the accused. The Court while examining the existence or otherwise of a prime facie case should also keep in view the provisions of section 250, Cr.P.C. which besides postulating that complaint may ultimately turn out to be based on false and frivolous accusation at the trial, provide sufficient safeguard to an accused against a false and frivolous accusation y the complainant." In this case the process was issued against the accused persons and trial Court acquitted the accused by holding the charge brought against him was false or either frivolous accusation or vexatious, has sufficient power to award adequate compensation to the accused under section 250, Cr.P.C. In this case, there was an allegation of defamation or of committing forgery of attribute `diary and Nikahnama' against Arshad Sami Khan, Adrian Sami and Mrs. Naureen Sami Khan (respondents Nos.1, 2 and 3), complainant's witness Mr. Ali Ahmed Kurd, Advocate stated that in his definite view the forged `Nikahnama' attributed to the complainant of her marriage with one Jafri was prepared by the accused Arshad Sami Khan, his wife and son Adrian; such an-opinion is deficient in substance not prima facie make out a case of committing forgery of the document by accused-respondents Nos. 1, 2 and 3 or by either of them, but in the present case one Riaz son of respondent No.4 Nadir Ali Jat was killed and an F.I.R. being Crime No.16 of 2000 was registered on 12-4-2000 at Police Station Ketti Mumtaz Bhutto and sons of applicant/complainant alongwith other accused are nominated in the said F.I.R. and the applicant/complainant in order to pressurise managed firing and set his house on fire with a view to implicate the proposed accused Nos. 1 to 4 with a view that they may surrender in the main murder case. The scope of section 203, Cr.P.C. is to hold preliminary enquiry and it is not contemplated that a notice be issued to the accused person before issuing a process but at the same time, if the Court holding such an inquiry issues such a notice to the accused persons before issuing process, it would not vitiate the inquiry, but the said Court recorded the statements of witnesses and the trial Court observed that there is no sufficient ground for proceeding with the direct complaint as the prosecution witnesses could not bring reasonable evidence in respect of the complicity of the accused persons for the commission of the offence, as the applicant/complainant sons are facing trial in respect of the killing of the deceased Riaz and Nadir Ali (respondent No.4) is the father of the deceased, who has been cited as an accused and no part is attributed to him, but only it is alleged that he was accompanied with Ghulam Shabir and other co-accused to take the revenge of murder of Riaz, but it is strange that complainant has only alleged that Ghulam Shabir had fired burst of K.K. on him, but he escaped and no other person attempted to fire on him to achieve the object. In this complaint, the public functionaries have been joined who have investigated and disposed of the case as false and they cannot be allowed to be subjected to harassment by private complaints. It has been held by the Hon'ble apex Court in the case of Anwar Ali Khan v. Wahid Bux (1991 SCMR 1608). The observations of Hon'ble apex Court is reproduced hereinbelow:-- "We are mindful of the fact that the public functionaries which are entrusted with the functions to enforce law and in furtherance thereof to use force, if necessary, cannot be allowed to be subjected to harassment by private criminal complaints as this would not be in the interest of the public-at-large and the country and, therefore, the Courts before issuing any process to the public functionaries should act with care and caution and to see prima facie-whether the complaint is not motivated malafidely. However, at the same time, the citizens are also entitled to the protection of law and, therefore, the public functionaries cannot use force more than what is necessary and warranted by the facts and circumstances of a particular case." Joining of two public functionaries in the direct complaint, indicates that applicant/complainant tried to harass the said respondents in the direct complaint, which was filed on 5-12-2000 in the Court of Judicial Magistrate, Ratodero, learned Additional Sessions Judge while dismissing the complaint has given reasons in the impugned order. During the course of arguments Mr. Ali Murad Abro, learned counsel for the applicant has frankly admitted that in the statements of the witnesses recorded during the course of preliminary enquiry, the said witnesses had not named Shahid Iqbal, S.S.P. and Amir Abbas Shah, D.S.P., Larkana as an accused for the commission of the offence that in the connivance of respondents Nos.1 to 4 had destroyed the evidence and they are not equally responsible with the other co -accused for the commission of the offence. It is stated that the respondents Nos.5 and 6 have committed an offence under section 220, P.P.C. but no complaint was filed under section 220, P.P.C. against the said respondents, but it is stated that they have destroyed the evidence. The reasoning given by the learned Additional Sessions Judge is based on proper appreciation of evidence adduced by the applicant/complainant party in the Court. It is the duty of the complainant to produce all such evidence before the Court which would enable it to decide whether process be issued or not. However, the provisions of section 202 are enabling provisions and not obligatory. The obligation to make out a prima facie case would entail establishment of a case against the accused at first sight on the evidence available before the Court, the Court would be duty bound to exercise such discretion with great care and caution. Unless evidence produced before the Court is such that, if un-rebutted the conviction may be based thereon, the Court would be justified to decline issue of process to the person complained against. The material produced by the applicant/complainant before the Court fell short of establishing a prima facie case. The applicant and his witnesses were interested witnesses as litigation earlier went on between them in respect of the killing of deceased Riaz and sons of the applicant/complainant are nominated accused alongwith others and the trial is pending in the Court of law. The case-law cited at the bar is based on different proposition of facts and the same are not applicable to the present case. In view of the foregoing reasons, I am of the view that impugned order does not call for any interference and the complaint was dismissed after perusal of evidence brought during the course of preliminary enquiry. By my short order, dated 28-10-2003 the criminal revision application was dismissed and the impugned order, dated 9-1-2003 passed by the learned Additional Sessions Judge, Ratodero was maintained. The above are the reasons for the same. Revision petition dismissed. N.H.Q./M-579/K