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2013LHC675

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20 views4 pages

2013LHC675

Lhc

Uploaded by

Sardar Hassan Sudozai
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Stereo. H C J C A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT

Crl.Misc.No.1287-M of 2012
(Muhammad Zulfiqar Vs. The State, etc.)

JUDGMENT

Date of hearing 28.3.2013


Petitioner by Mr.Muhammad Tariq Nadeem, Advocate
Respondent by Mehr Mazhar Hussain Hiraj, Advocate

ABDUS SATTAR ASGHAR J:- This Criminal


Miscellaneous Application under Section 561-A of the Code of
Criminal Procedure 1898 is directed against the order dated
26.11.2012 passed by learned Sessions Judge Multan whereby order
dated 11.7.2012 passed by learned Illaqa Magistrate Multan was set
aside and petitioner along with respondents No.3 to 6 were ordered to
be summoned to face the trial in private complaint lodged by
Muhammad Shareef respondent No.2 in the offences under Sections
364, 380, 506 Pakistan Penal Code 1860 and 25-D of the Telegraph
Act 1885.
2. It is argued by learned counsel for the petitioner that after
recording the cursory evidence of the complainant and the P.Ws. the
learned trial Magistrate dismissed the complaint for want of sufficient
evidence to summon the accused; that learned Sessions Judge while
accepting the appeal against the order passed by learned trial
Magistrate was not competent to summon the accused rather he could
have only remanded the case to the learned trial Court in terms of
Section 436 Code of Criminal Procedure 1898 for further proceedings
in accordance with law.
3. On the other hand learned counsel for respondent No.2
has resisted this petition with the contentions that keeping in view the
provisions of Sections 202, 203 read with Section 436 of the Code of
Criminal Procedure 1898 leanred Sessions Judge was competent to
Crl.Misc.No.1287-M/2012 2

order the summoning of the accused while remanding the case to the
learned trial Magistrate; that the impugned order passed by learned
Sessions Judge do not suffer from any jurisdictional error or legal
infirmity.
4. Arguments heard. Record perused.
5. At the outset it may be expedient to reproduce hereunder
provisions of Sections 202, 203 and 436 of the Code of Criminal
Procedure 1898 for ready reference:-
“Section 202:- Postponement of issue of process.—(1) Any court,
on receipt of a complaint of an offence of which it is authorized
to take cognizance, or which has been sent to it under Section
190, sub-section (3), or transferred to it under Section 191 or
Section 192, may, if it thinks fit, for reasons 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 in inquiry or investigation to be made by 5[any
Justice of the Peace or by] a police-officer or by such other
person as 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 sub-section (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 6[or Justice of the Peace] 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.
(4) Any Court inquiring into a case under this section may, if
it thinks fit, take evidence of witnesses on oath.]
Section 203:- dismissal of complaint. [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 there is in his
judgment no sufficient ground for proceeding. In such case he
shall briefly record his reasons for so doing.
Section 436:- Power to order further inquiry. On examining any
record under section 435 or otherwise—
(a) the High Court may direct the Sessions Judge to require
[any] Magistrate subordinate to him to make, further
Crl.Misc.No.1287-M/2012 3

inquiry into any complaint which has been dismissed


under section 203 or sub-section (3) of section 204 [….].
(b) The High Court or the Sessions Judge may direct the [any
Magistrate] to make further inquiry into any proceeding
in which order of discharge or release has been made
under section 119].”

6. The question involved in this case is that as to whether


Sessions Judge in exercise of his powers under Section 436 Code of
Criminal Procedure 1898 is competent to summon the accused while
remanding the case to the learned trial Court. The point in issue has
already been candidly resolved by the Hon’ble Supreme Court of
Pakistan in the case titled Fazal Karim and others Vs. Muhammad
Boota and another (1991 SCMR 2157). The relevant extract of the
dictum laid down by the Hon’ble Apex Court reads below:-

“It is true that section 436 does not mention in so many words
the summoning of the accused. But if sections 202 and 203 are
kept in mind and read together, there was no need to mention the
obvious. In section 202 it is provided in positive language that
one course is of summoning the accused forthwith without an
enquiry. Though the other course of postponing the summoning
is possible but for that, reasons are to be recorded Hence it is
obvious that what 202. Cr.P.C. permits can undoubtedly be done
by the Sessions Court under section 436, Cr.P.C. – namely
summoning of the accused without enquiry. --------------------------
------------ To sum up the Sessions Judge can order the
summoning of the accused without an enquiry at all as under
section 202, Cr.P.C. He can order summoning the accused on the
basis of the inquiry, if any, held by the Magistrate before
dismissal under section 203 Cr.P.C. He can also postpone the
summoning of the accused as under section 202 by recording
reasons in that behalf and can order the Magistrate to hold
enquiry as further enquiry, if some enquiry was held before
dismissal under section 203, Cr.P.C.”

7. Perusal of the record transpires that during the course of


cursory evidence in terms of Section 202 Code of Criminal Procedure
1898 before the learned trial Magistrate, the complainant appearing as
CW-1 and his witnesses namely Nazar Hussain CW-2 and Umar
Hayat CW-3 categorically stated that respondents namelyZulfiqar and
Abdul Ghaffar took the wife of complainant namely Mst.Ameera Mai
for the purpose of effecting compromise between the parties and
Crl.Misc.No.1287-M/2012 4

thereafter the complainant along with witnesses went to the


respondents and demanded to return the wife of the complainant but
the petitioner and respondents No.3 to 6 instead of returning the wife
of the complainant threatened them with dire consequences and
illegally detained her at some unknown place. It is astonishing that
despite above noted statement of the complainant corroborated by the
P.Ws. learned trial Magistrate dismissed the complaint. The learned
Sessions Judge appreciating the material available on the record
therefore rightly set aside the order dated 11.7.2012 passed by learned
trial Magistrate and summoning the petitioner and respondents No.3
to 6 as accused remanded the case to learned trial Magistrate for
further proceedings in terms of Section 436 Code of Criminal
Procedure 1898. Needless to say that the powers of the Court of
Sessions are not restricted by what is contemplated in Section 436
Code of Criminal Procedure 1898 and the Court can order the
summoning of the accused without directing any further inquiry. The
word ‘may’ used in Section 436 Code of Criminal Procedure 1898
bears notable significance and confers a discretion with the Sessions
Judge to order summoning of the accused after inquiry or without
further inquiry while remanding the case to the learned trial
Magistrate.

8. For the above reasons I do not find any jurisdictional


error or legal infirmity in the impugned order dated 26.11.2012 passed
by learned Sessions Judge Multan. The petitioner has no case to
invoke the jurisdiction of this Court under Section 561-A of the Code
of Criminal Procedure 1898. This petition having no merit is
dismissed.

(Abdus Sattar Asghar)


Judge

Approved for reporting.

JUDGE
*Ejaz*

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