PLJ 2010 Cr.C. (
[
Present: Pervaiz Inayat Malik, J.
WAHID
BAKHSH--Petitioner
versus
STATE and
others--Respondents
Crl. Revision No. 180 of 2007, decided on
27.5.2009.
Burden of
Proof--
----The Burden
of proof in a preliminary inquiry for the issuance of process in quite lighter
on the complainant as compared to the burden of proof on prosecution at the
trial of an offence as the prosecution is to prove case beyond reasonable doubt
and at the preliminary stage the complainant is not required to dis-charge above heavy burden of proof--Court cannot over
stretch the proceedings as to convert the preliminary inquiry or the averments
made in the complainant to a stage of full-fledged trial of the case. It is
quite an initial stage whereafter the accused is
having the opportunity, apart from showing his innocence in the case at the
final stage, to have a recourse to an intermediatory
remedy by moving the Court showing the complainant to be false and frivolous
one and requesting the Court for his acquittal u/Ss. 249-A or 265-K, Cr.P.C prior to further proceeding in the case to be taken.
Mere summoning of an accused by the Court to answer the charges leveled against
him does not tantamount to any infringement of any right of a person but rather
an opportunity afforded to him to explain his position. [P. 690] B
False and
frivolous accusation--
----The
possibility of accusation turning out to be false or frivolous at the trial
should not overbear the Court from issuing the process if the material
available. Prima facie discloses the case against the accused. At this stage a
protracted inquiry or full dress rehearsal of trial is not required. Moreover,
Section 250, Cr.P.C also provides sufficient
safeguard to an accused against a false and frivolous accusation by the
complainant which envisages that the Court while acquitting an accused at the
trial stage, holding the charge brought against him, was false, frivolous or
vexatious has sufficient power to award adequate compensation. [P. 690] C
Criminal
Procedure Code, 1898 (V of 1898)--
----Ss. 439,
202 & 203--Criminal Revision--Sufficient evidence--Deeper appreciation of
evidence--Proceedings u/Ss. 202 or 203 Cr.P.C. depend
upon the existence or non-existence of sufficient grounds which have been taken
by Courts as existence of prima facie case--Impugned judgment passed by
Sessions Judge was found to be illegal, perverse and violative
of law laid down by Hon'ble Supreme Court--Held:
Sufficient evidence prima facie connecting the respondents being available,
there was no justification for the trial Court to dismiss the complaint at limine stage--Revision petition allowed. [P. 690] A & D
Ch. Faqeer Muhammad, Advocate for Petitioner.
Mian Bashir Ahmad,
D.P.G for State.
Mian Muhammad Mushahid
Asghar, Advocate for Respondents No. 2 to 4.
Date of
hearing: 27.5.2009.
Order
Briefly
stated facts as those emerge out of this revision petition are that a criminal
case bearing FIR No. 265/2006 dated
2. It is inter-alia
contended that learned trial Court proceeded to dismiss the complaint without
any cogent reasons and lawful justification; that sufficient prima facie
evidence connecting the accused/respondent being available on the record, it
was, therefore, incumbent upon learned trial Court to have summoned the
accused/respondents and proceeded with trial. It is added that at the time of
summoning of accused/respondent only tentative assessment of evidence is
permissible. Whereas, learned trial Court entered into an un-necessary exercise
of deeper appreciation. In support of his contention Ch. Faqeer
Muhammad, Advocate learned counsel for the petitioner rep-lies upon law laid
down by Hon'ble Supreme Court of Pakistan in Noor Muhammad Vs. The State etc (PLD 2007 Supreme Court 9).
3. Conversely Mian
Muhammad Mushahid Asghar,
advocate learned counsel for the Respondents No. 2 to 4 vehemently opposes the
submission made at bar by learned counsel for the petitioner and submits that
no evidence at all connecting the petitioner with the offence alleged against
was available on record, therefore, learned trial Court rightly proceeded to
dismiss the complaint in limine. Further contends
that the impugned judgment being perfectly in accordance with law is liable to
be maintained.
4. Arguments heard and record perused.
5. I find force in the arguments of learned
counsel for the petitioner that learned trial Court proceeded to pass the
impugned judgment by under taking exercise of discussing evidence at quite some
length and also referred to the investigation conducted in the state case,
referred to Supra. This obviously is a deeper appreciation of evidence which is
not permissible under the law. The case law referred to Supra by learned
counsel for the petitioner P.L.D. 2007 Supreme Court, is an authoritative
pronouncement on the subject, which to my mind fully attracts in the facts and
circumstances of the present case. In the judgment referred to Supra their
Lordship were pleased to observe that the proceedings under Section 202 or 203 Cr.P.C depend upon the existence or non-existence of
sufficient grounds which have been taken by Courts as existence of prima-facie
case. With regards to burden of proof it was observed by their Lordship that:--
"The
burden of proof in a preliminary inquiry for the issuance of process in quite
lighter on the complainant as compared to the burden of proof on prosecution at
the trial of an offence as the prosecution is to prove case beyond reasonable
doubt and at the preliminary stage the complaint is not required to dis-charge above heavy burden of proof. The Court cannot
over stretch the proceedings as to convert the preliminary inquiry or the
averments made in the complaint to a stage of full-fledged trial of the case.
It is quite an initial stage whereafter the accused
is having the opportunity, apart from showing his innocence in the case at the
final stage, to have a recourse to an intermediatory
remedy by moving the Court showing the complaint to be false and frivolous one
and requesting the Court for his acquittal under Section 249-A or 265-K, Cr.P.C prior to further proceeding in the case to be taken.
Mere summoning of an accused by the Court to answer the charges levelled against him does not tantamount to any
infringement of any right of a person but rather an opportunity afforded to him
to explain his position."
It was
further observed that:--
"The
possibility of accusation turning out to be false or frivolous at the trial
should not overbear the Court from issuing the process if the material
available. Prima facie discloses the case against the accused. At this stage a
protracted inquiry or full dress rehearsal of trial is not required. Moreover,
Section 250, Cr.P.C also provides sufficient
safeguard to an accused against a false and frivolous accusation by the
complainant which envisages that the Court while acquitting an accused at the
trial stage, holding the charge brought against him, was false, frivolous or
vexatious has sufficient power to award adequate compensation."
6. As observed in preceding para
the law laid down by Hon'ble Supreme Court of
Pakistan in Noor Muhammad case referred to Supra
fully clinches the matter and no other view can be allowed to be taken.
7. For what has been discussed above, the
impugned judgment passed by learned Sessions Judge Muzafargrah
dated 29.5.2007 is found to be illegal, perverse and violative
of law laid down by the Hon'ble Supreme Court
referred to Supra.
Sufficient evidence prima
facie connecting the respondents being available. There was no
justification for the learned trial Court to dismiss the complaint at limine stage. This petition, therefore, is allowed.
Consequently the impugned judgment is set-aside. The net result would be that
complaint filed by the present petitioner before learned Sessions Judge Muzafargarh shall be deemed to be pending.
(A.S.) Revision
allowed.