ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Cr.Rev.Appl.No.S- 105 of  2009

DATE         ORDER WITH SIGNATURE OF JUDGE

 For Katcha Peshi.

Date of hearing:            07-05-2010

Date of order:              

Mr. Aftab Ahmed Bhutto, Advocate for applicant.

                        Mr. Shahid Shaikh, A.P.G.

                                                =

O R D E R

AQEEL AHMED ABBASI, J-   Being aggrieved and dis-satisfied with the order dated 8.7.2009 passed by learned Ist Additional Sessions Judge, Hyderabad in Direct Complaint filed by the applicant, dismissing the same, the applicant has preferred the instant Criminal Revision Application U/s 439 Cr.P.C.

                        The brief facts leading to the instant revision application are that applicant/complainant field a Direct Complaint U/s 200 Cr.P.C before the Civil Judge & Judicial Magistrate-I, Hyderabad against the accused persons whereupon the learned Magistrate vide it’s order dated 21.1.2008 directed as under:-

“The instant direct complaint is fixed for an offence 395-P.P.C. which is triable by Honourable Sessions Court. Hence sent up.

            Hearing………………..12.2.2008”.

                        It is evident from the record that complainant and the eye witnesses were examined by the Magistrate U/s 202 Cr.P.C. After recording the statement of the complainant, the Direct Complaint was sent to the learned Civil Judge & Judicial Magistrate-XII, Hyderabad who has submitted his report before the learned Ist Additional Sessions Judge, Hyderabad who has finally disposed of the matter on 8.7.2009 whereby intimating that the complainant has failed to make out a prima facie case against the accused persons resultantly, the Direct Complaint was dismissed.

                        It is inter alia contended by learned counsel for the applicant that learned Additional Sessions Judge has erred in law and facts while deciding the complaint after considering the entire evidence in detail and has thus given his findings on merits of the case. As per learned counsel, such authority is not vested in the Court in terms of Section 200 Cr.P.C. He further contended that scope of section 200 Cr.P.C has been defined by Superior Courts according to which the trial Court is not authorized to decide the case on merits after examining the entire evidence, on the other hand the trial Court is required to form an opinion as to see whether in view of the contents of the Direct Complaint and statement of the complainant and his witnesses, a prima facie case for taking cognizance has been made out by the trial Court. As per learned counsel, there is no such finding by the learned Ist Additional Sessions Judge, Hyderabad. Moreover, it appears that final judgment has been passed wherein evidence in the matter has been examined and finally decided. In support of his contentions, the learned counsel has relied on the following judgments:-

1. Muhammad Fiaz Khan Vs. Ajmer Khan and another (2010 SCMR 105).

2. Azmat Bibi and another Vs. Asifa Riaz and 3 others (PLD 2002 Supreme Court 687).

3. Muhammad Akram Vs. The State and others (1999 P.Cr.L.J 1725).

4. Abdul Ghafoor Vs. Muhammad Ismail and 2 others (PLD 2006 Karachi 105).

5. Abdul Ghafoor and 4 others Vs. Ghulam Hussain and 4 others (1993 P.Cr.L.J 1988).

6. Abdul Majid Vs. Dr. Mansur Ali and 14 others (1969 P.Cr.L.J 692).

                        The learned A.P.G under the facts and circumstances of the case and in view of the decisions relied upon by learned counsel for the applicant, does not support the impugned order.

                        I have heard both the learned counsel, perused the record and examined the case law referred and relied upon by learned counsel for applicant.

                        I am of the view that ratio of judgments referred hereinabove is applicable to the facts and circumstances of this case as the learned trial Court appears to have decided the complaint of the applicant after detailed appreciation of evidence whereas proper opportunity to the applicant to make out a prima facie cognizable case appears to have not been granted. Since the learned trial Court has finally decided the case at initial stage, the complainant has been deprived full opportunity to participate in the proceedings and prove his case on the basis of allegations contained in his complaint. In view of hereinabove, the impugned order is set aside and the case is remanded to the trial Court with direction that the trial Court shall afford full opportunity to the complainant to bring entire material on record without issuing any notice to the accused persons at the initial stage. However, if the applicant is able to make out a prima facie cognizable case and the trial Court is of the opinion that in view of the facts and circumstances cognizance can be taken in terms of Section 200 Cr.P.C, the notices may be issued to the accused persons and proceedings may be finalized according to law.

                        The instant Criminal Revision Application stands disposed of in the above terms.        

JUDGE

Tufail