2010 SCMR 105 (PLP)

CH. IJAZ AHMED, J.

The petitioner seeks leave to -appeal against the judgment of the Lahore High Court Rawalpindi Bench, Rawalpindi, dated 15-4-2009.

2. Necessary facts out of which the present petition arises are that respondent No.1, a property dealer, is a resident of village Sirka. According to him on 27-5-2004 while he was on his way to Attock from his village on his car bearing Registration No.B-2202 Peshawar. When he reached Haji Shah near Telephone Exchange at 8-00 a.m. he saw Vehicle No.777 Toyota Surf red colour and Toyota Land Cruiser No.1741 Peshawar. Accused persons, who were armed, opened fire at him. They fired three shots out of which two were missed while the third fire hit left side of his car over the window, breaking glasses. Respondent No.1 had lodged report to Police Station Attock Khurd which was reduced into writing vide Rapat No.7. According to the respondent No.1 the police authorities did not register formal F.I.R. nor did they record the statements of witnesses. Therefore, he preferred an application before the learned Additional Sessions Judge for registration of case which was rejected vide order, dated 12-6-2004. The petitioner being aggrieved filed Writ Petition No.2024 of 2004 which was decided by the learned High Court vide order, dated 16-7-2004 and directed the S.D.P.O. to take the cognizance of the matter in accordance with law. In obedience to the aforesaid direction report was recorded on 25-7-2004 vide Rapat No.13. The aforesaid Rapat No.7 was investigated by the concerned police station which was found incorrect and false. Similarly inquiry was conducted by S.D.P.O. in compliance to the order, dated 16-7-2004 which was passed on the writ petition filed by respondent. He also concluded that allegations levelled by respondent were not correct. It is appropriate to note here that the police authorities had concluded that complaint made by respondent No.1/complainant was false and baseless. Proceedings under section 182, P.P.C. have already been initiated against respondent No.1 wherein the prosecution has led the evidence and the case was .fixed for recording statement of accused/respondent No.1. Respondent No.1 filed private complaint No.167 of 2004 in the Court of Magistrate Section 30, Attock against Muhammad Faiz Khan (present petition), Muhammad Riaz Khan, Babar Mehmood and Gul Khan. The contents of the complaint reveal that he made a report to the police on 27-5-2004 which was reduced into writing as Rapat No.7 mentioned hereinabove and the police had taken into possession mettle pieces of the cartridges. It is pertinent to mention here that complainant had not mentioned name of any of the accused in the contents of the Rapat whereas in the complaint respondent No.1 alleged that Babar Mehmood, Gul Karim and Muhammad Fayyaz Khan had attacked him on the instigation of his real brother Muhammad Riaz Khan. Muhammad Fayyaz Khan is Mukhtiar of his brother Muhammad Riaz Khan, Babar Mehmood is son of his brother Muhammad Riaz Khan where Gul Karim is servant of Muhammad Riaz Khan. The contents of the complaint further reveal that he had civil as well as criminal litigation with his brother Muhammad Riaz Khan pending adjudication in different Courts. He also alleged that the petitioner and his other companions (co-accused) had threatened to kill if he would not withdraw the cases. The police authorities under the influence of the accused persons did not investigate the matter honestly and fairly. The learned Magistrate dismissed the complaint vide order dated 16-10-2004. Petitioner being aggrieved filed criminal revision in the Court of Additional Sessions Judge, Attock, who dismissed the same vide order dated 16-4-2005. Respondent 'being aggrieved filed Writ Petition No.1313 of 2005 in the Lahore High Court, Rawalpindi Bench, Rawalpindi, which was accepted vide impugned judgment, dated 15-4-2009. Hence the present petition.

3. Learned counsel for the petitioner submits as under:-- (i) Learned High Court had erred in law to disturb the concurrent finding of innocence recorded by the Courts below while exercising power under Article 199 of the Constitution. (ii) The incident in question was thoroughly, honestly and fairly investigated by the concerned local police who found that allegations levelled by respondent No.1 on the basis of which report was recorded were baseless. (iii) The matter was considered by the learned Additional Sessions Judge while deciding application filed by respondent/ complainant under section 22-A, Cr..P.C. and did not find any force in the allegations therefore, the same was dismissed vide order, dated 12-6-2004. (iv) Respondent No.1 had invoked the constitutional jurisdiction by filing writ petition under Article 199 of the Constitution before the learned High Court which was disposed of with the direction to the S.D.P.O. to proceed the matter in accordance with law. (v) S.D.P.O. in compliance with the direction of the learned High Court had 'probed into the matter and did not find any truth in the allegations levelled by respondent. (vi) Proceedings under section 182, P.P.C. were initiated against respondent No.1/complainant prosecution had led evidence and that the case was fixed for his statement under section 342, Cr.P.C. He filed the complaint as a counter-blast which was dismissed by the learned Magistrate after application of mind and the same was reaffirmed by the learned Additional Sessions Judge. (vii) Learned High Court had erred in law to accept the writ petition of respondent No.1. (viii) The learned High Court erred in law to remand the matter to the learned trial Court after five years which resulted in grave miscarriage of justice. (ix) Writ petition was not maintainable which was filed against the order passed by the learned Additional Sessions Judge exercising power under sections 435/439, Cr.P.C. In support of his contention, the learned counsel for the petitioner has relied upon Abdul Rehman Bajwa's case PLD 1981 SC 522.

4. Learned counsel for respondent No.1 submits that learned High Court had passed the order after judicial application of mind as the Courts below dismissed the complaint and revision petition of the respondent/ complainant in violation of mandatory provisions, of Criminal Procedure Code i.e. sections 200 to 204, Cr.P.C. According to him trial Court before issuing process under section 204, Cr.P.C. was only duty bound to examine the evidence only to the extent to see whether sufficient material is available to put the present complaint/accused to trial or not whereas the learned trial Court had examined the material on record in depth at the stage of issuance of process to the accused persons by considering it to a stage of full-fledged trial of the case. The learned trial Court and the learned Revisional Court and decided the complaint of the respondent/complainant in violation of the law laid down by the superior Courts, therefore, the learned High Court was justified to set aside the allegations of the Tribunals below while exercising power under Article 199 of the Constitution. In support of his contentions he had relied upon Noor Muhammad's case PLD 2007 SC 9 and Anwar Ali Khan's case 1991 SCMR 1608.

5. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record ourselves. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties. (i) Rapat No.7 was recorded by respondent No.1/complainant on 27-5-2004 without nominating name of any accused person in the contents of the complaint. (ii) Local police investigated the matter in view and found the complaint baseless. (iii) Respondent/complainant secured the direction from the learned High Court to S.D.P.O. to probe into the matter. The S.D.P.O. in compliance of the direction of the learned High Court had inquired the matter in issue and had concluded that allegations levelled by respondent were baseless. . (iv) Respondent/complainant preferred an application under section 22-A, Cr.P.C. before the learned Additional Sessions Judge concerned who dismissed the same. (v) Proceedings under section 182, C.P.C. were initiated against complainant/respondent No.

1. The statements of the witnesses of the prosecution had been recorded and the case was fixed for statement of complainant/respondent under section 342, Cr.P.C. before the Magistrate. At this stage complainant had filed complaint under section 324/34 and section 506, P.P.C. The Magistrate dismissed the same vide order, dated 16-10-2004 and revision petition filed by the respondent was also dismissed by the learned Additional Sessions Judge vide order dated 16-4-2005. (vi) The aforesaid order of the learned Additional Sessions Judge was set aside by the learned High Court vide- impugned judgment and the case was remanded to the trial Court after five years. (vii) The trial Court dismissed the complaint after application of mind on 16-10-2004. The operative part of the order/judgment is reproduced hereunder:

"During pendency of this case Muhammad Nisar and Muhammad Pervez who were produced by the complainant in the Court moved application that the statements which were recorded in the Court on their behalf was based on fraud. They stated that they never saw the occurrence nor any such occurrence had ever taken place in their presence. The complainant had also moved application that an action be taken against the above mentioned P.Ws. because they appeared in Court and made statements. Without going into the controversy of appearance or non-appearance of Muhammad Nisar and Muhammad Pervez one thing is clear that they are not going to support the complainant's version nor they are cited as witnesses on the first report which makes the version put by the complainant highly doubtful. So far as the statement of Nazia wife of Muhammad Riaz, accused 1 is concerned, she on a Court question stated that she had strained relations with her husband and was not living with him. So her statement seems to be interested and cannot be believed. So far as the statement of Mst. Afrozi, mother of complainant who is also mother of Muhammad Riaz, accused 1, is concerned that too does not inspire confidence because she is living with the complainant and has strained relations with her other son, accused. It is noteworthy that the police after investigation concluded that the report made by the complainant was false and baseless. Proceedings under section 182, P.P.C. have also be initiated against the complainant. The prosecution has led all the evidence and the case was fixed for statement of accused when he filed the present complaint just to get rid of the consequences of the case under section 182, P.P.C. The proceedings under section 182, P.P.C. were pending against him for the last two months but he did not bother to file complaint for this period and when all the prosecution evidence in the case under section 182, P.P'.C. was produced by the prosecution and the case was fixed for his statement under section 342, Cr.P.C. he filed the instant complaint which seems to be afterthought and the occurrence having been disbelieved by the police. I also see no ground to proceed further with the present case which on the face of it seems to be false and frivolous. The story put by the complainant is full of doubts, therefore, I am not inclined to summon the accused persons in the instant case. The complaint is false which is hereby dismissed." (viii) The aforesaid finding was confirmed by the learned Additional Sessions Judge vide its judgment dated 16-4-2005. (ix) The trial Court as well the Revisional Court after proper appreciation of material on record had dismissed the complaint of the respondent No.1 which was set aside by the learned High Court vide its impugned judgment dated 15-4-2009 in the following terms:-- "The Court cannot stitched the proceedings as to convert preliminary inquiry or averments made in the complaint to a stage of full-fledged trial:`, of the case. There was sufficient material available for the 'trial Court to issue process under section 204, Cr.P.C. Learned Court of Additional Sessions Judge while exercising its revisional jurisdiction also not exercised his jurisdiction within its scope."

6. It is settled proposition of law that each and every case is to be decided on its own peculiar circumstances and facts. Facts highlighted hereinabove clearly depict that respondent No.1/complainant had filed the complaint after a considerable delay after availing different remedies mentioned hereinabove. It is a settled' law that no limitation is provided in criminal law for lodging a complaint. See Queen Empress v. Ajudhia Singh and others 10 All.

350. In spite of the aforesaid general principle of law when the complaint was filed after a considerable delay which was not explained by the complainant then in such a situation it raises suspicion as to its truthfulness meaning thereby that delay in filing complaint is not by itself fatal except under very special circumstances. The complaint looses its truthfulness with the length of delay, more particularly when it is based on oral evidence. This proposition of law was considered in Mst. Shamim's case 2003 SCMR 1466 and laid down the following principles:-- "Be that as it may, unexplained delay in setting the machinery of law in motion prima facie points to fabrication of the prosecution story, therefore, we would like to observe that if the complainant hibernates after cancellation of the F.I.R. and makes a delayed private complaint the prosecution evidence must be sifted and weighed with' great care and caution." It is settled principle of law that appreciation of evidence at preliminary inquiry with the yardstick of trial Court is not the purpose under section

202. The trial Court has to believe only to see a prima facie case is to be made out or not that is why full dress rehearsal of trial is not possible. This is the general principle with regard to examining the evidence on record before issuing process under section 204, Cr.P.C. Section 202 falls under Chapter XVI of Criminal Procedure Code. Therefore, the scope of this section is to separate unfounded from substantial cases at the outset at the initial stages that is why command of the section bound the Magistrate who has to satisfy himself before issuing of process to the respondent/accused. The object and scope of this section are two-fold which are as follows:-- (i) to allow free and fair opportunity to complainant to produce some evidence to make out grounds for issuing processes against accused. It is the duty of Magistrate to scrutinize contents of complaint, nature of allegations made therein, material in support of accusation. (ii) object intended to be achieved, possibility of victimization and harassment, if any, to ensure himself that no innocent person against whom all allegations are levelled should suffer ordeal of protracted, time consuming and cumbersome process of law. The aforesaid proposition of law are supported by the following judgments: (i) Sheikh Meeran's case AIR 1915 Mad. 128 and (ii) Muhammad Nawaz's case 2000 SCMR 1904. As mentioned above, trial Court does not validate the material on record like evidence to be validated after the conclusion of the trial. It- is a settled law that constitutional jurisdiction under Article 185(3) or 199 of the Constitution is discretionary in character. It is also a settled law that he who seeks equity must come with clean hands and must be vigilant qua his right to approach Courts well in time. The petitioner had filed complaint at the time when his statement is to be recorded under section 342, Cr.P.C. with regard to the proceedings which were initiated against him under section 182, P.P.C. In the case in hand, proceedings had already been initiated against him under section 182, P.P.C. as `mentioned hereinabove. This fact was not considered by the learned High Court in the impugned judgment. It is the duty of the complainant to explain the delay in lodging complaint which has not been done in the present case. The unexplained delay is undoubtedly fatal to the case of the complainant. It is the duty and obligation of the Court to examine this aspect of the case even if the counsel of the parties had failed to raise this plea on the well-known principle that a Judge must wear all the laws of the country on the sleeve of his robes and failure of the counsel to properly advise is not complete excuse in the matter as law laid down in Muhammad Sarwar's case PLD 1969 SC

278. Learned High Court has erred in law to exercise discretion in favour of respondent in violation of law laid down by Full Bench of the Lahore High Court which was also approved by this Court. See Muhammad Sharif's case PLD 1988 Lah. 725 and Haji Muhammad Saifullah Khan's case PLD 1989 SC

166. Keeping in view the conduct of the respondent as highlighted hereinabove, learned High Court did not justify to exercise its discretion in favour of the respondent as law laid down by this Court in Nawab Syed Raunaq Ali's case PLD 1973 SC

236. Relevant observation is as follows:-- "Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order 'sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked." Even otherwise the writ petition was not maintainable in the High Court against the order passed by the learned Additional Sessions Judge in criminal revision as law laid down by this Court in Badruddin's case PLD 1993 SC 399.

7. In view of what has been discussed above, the impugned judgment of the learned High Court is set aside. The petition is converted into appeal and the appeal is allowed. M.H./M-91/SC Appeal allowed.