1998 PLP 922 (SCMR)

Per Mamoon Kazi, J.

Contra. Per Mamoon Kazi, J.

(e) Criminal Procedure Code (V of 1898)

S. 202

Preliminary enquiry

Object

Object behind 5.202, Cr.P.C. is to ensure satisfaction of the Court about a prima facie case having been made out against accused before he is called upon to answer a criminal' charge for which process may be issued by the Court. (f) Criminal Procedure Code (V of 1898)

S. 202

Nature of provisions of S.202, Cr.P.C.

Provisions of S.202, Cr.P.C. are enabling provisions and not obligatory. (g) Criminal Procedure Code (V of 1898)

S. 202

Issuance of process

Court is duty bound to exercise discretion in issuing process to accused named in the complaint with great care and caution-- Unless evidence produced before the Court is such that if unrebutted conviction may be based thereon, Court would be justified to decline issue of process-to the person complained against. Sher Singh v. Jitendranath Sen AIR 1931 Cal. 607 ref. Yahya Bakhtiar, Senior Advocate Supreme Court with Muhammad Riaz, Advocate-on-Record (absent) for Appellant. Abdul Latif Yousafzai, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondents Nos. l to

3. Raja Abdul Ghafoor, Advocate Supreme Court for Advocate-General, Balochistan. Hafiz Saeed Ahmad, Advocate Supreme Court with. Ch. Akhtar Ali, Advocate-on-Record for Respondent No.6. Nemo for the Remaining Respondents. Date of hearing: 2nd March, 1998. , RAJA AFRASIAB KHAN, J.

On 19-11-1993 vide Annexure-DD, the appellant, Ms. Zeba Bakhtiar and the respondent, Adrian Sami Khan married each othtr against dower amount of Rs.4,00,000 at Islambad. As a result of the marriage, the appellant gave birth to a boy named Aazan. It is unfortunate that the parties could not live as husband and wife because differences of serious nature arose between them. On account of subsequent developments having arisen in their matrimonial affairs, on 29-11-1997, the appellant instituted criminal complaint against the respondents under section 499/500/501/502/465/469/471, P.P.C. read with section 7/10 of the Offence Qazf (Enforcement of Hadd) Ordinance, 1979 before Judicial Magistrate-IV/Magistrate Ist Class, Quetta which was transferred to the file of Balochistan High Court, Quetta. The prayer made in the complaint is: "It is, therefore, respectfully prayed that the Hon'ble Court may be pleased to issue warrants for arrest of the accused-respondents and after trial award appropriate punishment for blatant forgery, Qazf of complainant and serious defamation of the complainant. The Court may be further pleased to award any other suitable punishment to accused respondents considered necessary under the law and in the interest of justice. " The High Court recorded the preliminary statements of Ms. Zeba Bakhtiar, Akhtar Zaman son of Muhammad Usman, Muhammad Riaz Ahmad son of Mian Aziz Bakhsh and Ali Ahmad Kurd son of Mir Ghulam Rasul Kurd in support of the case of the appellant. The High Court vide its order dated 12-1-1998 proceeded against the respondent No.2, Adrian Sami Khan while the complaint against respondents Nos. l and 3 was dismissed. Against this order, leave to appeal was granted on 25-2-1998 in the following terms:-- "Leave to appeal is granted to consider the following points (i) whether as regards dismissal of complaint against respondents Nos. 1, 2 and 3 in the circumstances of the case and in view of the material placed on record with the complaint is maintainable; (ii) whether the observation made in the impugned order of the High Court that "mere statement of the complainant and witnesses is not sufficient at the moment to make prima facie case for the offence of defamation or of committing forgery for the attributed diary and 'Nikahnama' against Arshad Sami Khan, Adnan Sami Khan and Mrs. Naureen Sami Khan (respondents Nos. l, 2 and 3) is tenable. Mr. Abdul Latif Yousafzai accepts notice on behalf of respondents Nos. l, 2 and

3. At the joint request of the learned counsel for the parties the appeal shall be fixed for hearing on 2-3-1998. The Advocate-General, Balochistan shall be contacted on telephone by the Additional Registrar informing him that he shall also appear in the Court on the said date of hearing. The Advocate-General Balochistan was required to appear today vide order dated 11-2-1998. No intimation has been sent to this Court for his absence. The Additional Registrar shall also bring that factor to his notice."

2. Mr. Yahya Bakhtiar, learned counsel argued that the statements of the appellant and other three witnesses named above, had established beyond doubt that the respondents Nos. l to 3 were guilty of commission of the offences as mentioned in the complaint. Learned counsel has drawn our attention to para. 26 of the complaint to show that the allegations of defamation, forgery etc, were levelled against respondents No.1 to

3. He continues to state that the appellant in her statement does implicate not only her husband, Adrian Sami Khan but also his parents in the commission of the crime. According to the learned counsel, this part of her statement is available at page 89 of the paper-book which was not considered in its proper perspective.

3. Learned counsel appearing on behalf of the respondents Nos. l to 3 submits that the order of the High Court is justified inasmuch as there is no evidence against respondents Nos. l and

3. This being so, order of dismissal of complaint to the extent of said respondents was warranted in law and facts of this case. In support of the plea learned counsel has relied upon Anwar Ali Khan v. Wajid Bakhsh (1991 SCMR 1608), Dhahwanti Vaswani v. The State and another (1994 SCMR 207) and Aarub Khan v. Haris M.B. Ahmad (PLD 1996 Karachi 253). In our view, these rulings are just off the track and as such, need not to be discussed.

4. We have heard the learned counsel for the parties at considerable length and have also gone through the entire record with their assistance. Needless to point out that the evidence so far recorded by the High Court is preliminary in nature to find out the falsity or otherwise of the accusation having been levelled by the appellant against the respondents Nos. l to

3. This is, surely, in consonance with the provisions of section 202, Cr.P.C. which runs as follows:- "(1) Any Court, on receipt of a complaint of an offence of which is authorised to take cognizance, or which has been sent to it under section 190, subsection (3), or transferred to it under section 191 or section 192 may, if it thinks fit, for reason to be recorded, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by a Police Officer, or by such other person as it thinks fit for the purpose of ascertaining the truth or falsehood of the complaint: Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200. (2) A Court of Session May, instead of directing an investigation under the provisions of subsection (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint. (3) If any inquiry or investigation under this section is made by a person not being a Magistrate, or a Police Officer, such person shall exercise all the powers conferred by this Code on an officer- incharge of a police station, except that he shall not have power to arrest without warrant. (4) Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witness on oath. " The aforesaid evidence is subject to cross-examination to be made by the respondents/accused at the appropriate stage. In other words, the evidence of the complainant cannot be held to be divisible at this stage inasmuch as a part of it has been accepted by the High Court to summon Adnan Sami Khan, the respondent No.2 whereas the same set of evidence against respondents Nos.l and 3 has been ignored for no good reasons. We have been persuaded to disagree with the approach of the High Court because keeping in view the evidence brought on record, it was for the time being safe and expedient to summon the remaining accused as well. The High Court while passing the impugned order observed as follows:-- "Mere statement of the complainant and witnesses, is not sufficient at the moment to make out a prima facie case for the offence of 'defamation' or of 'committing forgery' of attributed 'diary' and ' Nikahnama' against Arshad Sami Khan, Adnan Sami Khan and Mrs. Naureen Sami Khan (respondents Nos. l, 2 and 3), complainant's witness Mr. Ali Ahmad 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 to 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. " It is evident from the afore-quoted observation that the High Court has appreciated the evidence tentatively and thought it fit and proper not to proceed against respondents Nos. 1 and 3 at the moment. The High Court itself is not sure about the falsity of the complaint. In this view of the matter, in our considered view, the order of the High Court is not in line with the mandate of law contained in section 202, Cr.P.C. referred to above whereunder the High Court is required to find out the falsity or otherwise of the complaint. This is certainly not the stage to assess the evidence in its depth. Suffice it to say that a prima facie case to proceed further was made out on the face of record. In this view of the matter, the impugned order dismissing the complaint to the extent of respondents Nos. l and 3 is not sustainable. It needs modification. The respondent No. 1, Arshad Sami Khan and respondent No.3, Mrs. Naureen Sami Khan shall also be deemed to have been summoned by the High Court to meet the ends of justice. It shall, however, not preclude the trial .Court to pass and appropriate order in favour of the respondents Nos.1 and 3 if no incriminating evidence is brought against them by the complainant. It may be made clear that the above observations shall not at all, affect the merits and demerits of the complaint already pending adjudication in the High Court which has to be decided on the basis of evidence and in accordance with law as expeditiously as possible preferably within six months. This direction shall also apply to the remaining litigation between the parties wherever it is pending decision.

4. With the above observation, this appeal succeeds and is allowed. (Sd.) Reja Afrasiab Khan, J. I agree with the conclusion subject to the note separately awarded. (Sd.) Saiduzzaman Siddiqui, i . SAIDUZZAMAN SIDDIQUI, J.

I agree with the conclusion of my learned brother, Raja Afrasiab Khan, J. However, to supplement the reasoning of my learned brother, I have appended this short note.

2. 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 over-stretch the proceedings so as to convert the prelim enquiry into a full-fledged trial of he case. The Court is required to determine the existence 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 prima facie case should also keep in view the provisions of section 250, Cr.P.C. which besides postulating that a 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 by the complainant. The Court while acquitting an accused, at the trial, holding that the charge brought against him was false or either frivolous or vexatious, has sufficient power to award adequate compensation to the accused under section 250, Cr.P.C. The observations of the learned Judge in Chambers "Mere statement of the complainant and witnesses, is not sufficient at the moment to make out a prima facie case for the offence of 'defamation' or of committing forgery of attributed 'diary' and ' Nikahnama' against Arshad Sami Khan, Adnan 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 to 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. Moreover; no evidence has been produced, to prima facie establish that the offence of committing ' forgery' of the stated documents was made within the territorial limits of this Court by accused Arshad Sarni Khan, Mrs. Naureen Sami Khan and Adrian Sami conjointly or otherwise." In the impugned judgment do not appear to be based on the proper analysis of the evidence produced by the complainant during the enquiry before the Court. The learned counsel for the appellant read out before us the relevant. portions of the evidence of the complainant m the case to show that the cases against all the respondents were made out under section 499/465/499/500/501/502, P.P.C. I would, however. not like to comment on the evidence led by the complainant before the Court in support of her case. Suffice it to observe that the learned Judge while dismissing the complaint against respondents 1 to 3 under section 499/500/501/465/469, P.P.C., apparently did not advert to the statement of complainant on oath recorded during the enquiry proceedings.

3. I, therefore, allow the appeal, set aside the impugned order to the extent it dismissed the complaint against respondents Nos. 1 to 3 under section 499/500/501/465/469, P.P.C and remit the case to the High Court for holding further enquiry and to reconsider the existence or otherwise of the prima facie case against respondents Nos. 1 to 3 under section 465/469/499/500/501/502, P.P.C in the light of the above observations and after taking into account the evidence already produced by the appellant or which the appellant may like to produce hereafter in pursuance of this order. MAMOON KAZI, J.

I have very carefully gone through the judgment proposed to be delivered in this case by Raja Afrasiab Khan, J. and the separate note written by Saiduzzaman Siddiqui, J. As I have been unable to persuade myself to agree with some of the observations made by my learned brothers, I want to add a few words of my own.

2. The facts of the case are already set out in the judgment of my learned brother, Raja Afrasiab Khan, J, therefore, reference to them again in this note would be unnecessary. Suffice it to say that the complaint filed by appellant Zeba Bakhtiar against respondents Arshad Sami Khan and others, alleging commission of the offence of defamation and forgery, which fall under sections 499/500/501/502/469/471, P.P.C and section 7/10 of the Offence of Qazf (Enforcement of Hadd) Ordinance. 1979 was first received by the Fourth Magistrate First Class, Quetta, who referred it to the learned Court of Sessions and ultimately it was dealt with by a learned Single Judge of the Balochistan High Court.

3. The procedure for dealing with such complaints is provided in Chapter XVI in the Code of Criminal Procedure. Section 200, Cr.P.C., in the said Chapter indicates that when cognizance of a complaint is taken, the complainant is to be examined on oath and the substance of the examination is to be reduced in writing which is to be signed by the complainant and also by the Magistrate. Section 202 further indicates that the Court may, for reasons to be recorded, postpone the issue of process for compelling the attendance of the person complained against and it may either inquire into the case itself and direct an inquiry or investigation to be made by a police officer or by such, other person as it thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. Section 203, Cr.P.C., then provides that the Court 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, there is in its judgment no sufficient ground for proceeding.

4. The order passed by the learned Judge indicates that after examining the appellant on oath, he further recorded statements of three of her witnesses under section 202 of the Code of Criminal Procedure. The appellant provided material before the Court consisting of copies of newspapers 'Nawa-e-Waqt', (Rawalpindi), ' Nawa-e-Waqat' (Lahore) and ' Khabrain' (Islamabad) dated 7-6-1997, 8-6-1997, 18-6-1997 and 23 9-1997 respectively. The said newspapers had published stories about the appellant's earlier life which, according to her, were based on a forged and manipulated diary. The said diary contained defamatory material which, according to the appellant, had caused damage to her reputation. The said respondents had also been charged by the appellant of having prepared a forged Nikahnama which, according to her, had been produced by the respondents in a Civil Court in an earlier litigation between the parties. The said Nikahnama had shown marriage of the appellant with one Javed Jaffri. Such evidence, coupled with that of the appellant's three witnesses examined during the preliminary enquiry, was, however, not found sufficient to prima facie establish the charge of defamation against the respondents Nos. l to 3, although, process was ordered to be issued against the respondent's Nos.4 to

6. However, respondent Adnan Sami Khan has been ordered to answer the charge of forgery under section 471, P.P.C., as the alleged forged Nikahnama had been filed by him in the suit pending between the appellant and the said respondent in the Civil Court.

5. Leave to appeal was granted by this Court to consider whether finding of the learned Judge of the High Court that, mere statement of the complainant was not sufficient to establish a prima facie case of defamation or forgery against some of the respondents in this case was sustainable.

6. The object behind section 202, Cr.P.C., appears to be to ensure that before a person is called upon to answer a criminal charge, the Court must be satisfied that there is a prima facie case against him for which process may, be issued by 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. In Sher Singh v. Jitendranath Sen (AIR 1931 Cal. 607), the expression 'prima facie case' was interpreted thus:-- "a 'prima facie case' only means that there is ground for proceeding. It is not the same thing as 'proof' which comes later when the Court has to find whether an accused is guilty or not guilty." .

7. Although there can be no cavil with the view taken by the Calcutta High Court, and the Court upon the material placed before it by the complainant in support of the allegations may issue process to the accused named in the complaint if a case is made out against him on first impression nevertheless, 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 unrebutted, conviction may be based thereon, the Court would be justified to decline issue of process to the person complained against.

8. The order passed by the learned Judge indicates that the material produced by the appellant before the Court fell short of establishing that the stories appearing in the newspapers in respect of the appellant had been published at the instance of any of the respondents Nos. l to'

3. Consequently, according to the learned Judge, even if the stories published in the newspapers were defamatory, there was no further material produced by the appellant, except for the bare statement of the appellant in this regard to establish that such material had been provided to the newspapers by the said respondents or that 1 they were in any manner responsible for publication of such reports. Such observations appear to be supported by the material on record, they are therefore, not open to exception. The appellant did produce three witnesses before the Court in support of the said allegations, but none of them has attributed the said stories published in the newspapers to the respondents Nos. l to

3. No doubt, reliance may be placed by the Court even upon the sole testimony of the complainant, but the same would depend upon the circumstances of each case. In the present case there is nothing to indicate that the discretion exercised by the learned Judge is open to exception, considering the circumstances of the case. The appellant was an interested witness as litigation earlier went on between her and the respondents Nos.l to 3 over custody of the former's son, Aazan. Therefore, if the learned judge in the High Court declined to rely upon the appellant's sole testimony, which could not be supported by any other reliable evidence, exception cannot be taken against the same. However, the case was registered against respondent No.2, Adnan Saint Khan, as his case was distinguishable in view of the fact that the alleged forged Nikahnama had been relied upon by him earlier in another case, as pointed out earlier, although, in that case also the learned Judge appears to have overlooked the provisions of sections 195 and 476, Cr.P.C. But I would refrain from making any further comment in this regard as the said order of the learned Judge has not been challenged before the Court by any of the respondents.

9. I would, therefore, uphold the impugned order and dismiss the appeal. By majority view this appeal is allowed, the impugned order to the extent it dismissed the complaint against respondents Nos. 1 to 3 under section 499/500/501 /465/469, P.P.C. is set aside and the case is remitted to the High Court for holding further enquiry and to reconsider the existence or otherwise of the prima facie case against respondents Nos. l to 3 under section 465/469/499/500/501/502, P.P.C. in the light of the above observations and after taking into account the evidence already produced by the appellant or which the appellant may like to produce hereafter in pursuance of this order. N.H.Q./Z-8/S Appeal allowed.