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Criminal Petition for Special Leave to Appeal No. 149 of 1968, decided on 21st May 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 19th April 1968, in Criminal Miscellaneous No. 1755 of 1968).
S. 436-Expression "further inquiry" in S. 436-Not confined to Ch. XVI of Cr. P. C.-- Magistrate to whom complaint entrusted for further inquiry under S. 436-Competent to issue summons forthwith in light of evidence already recorded-No obligation to hold fresh inquiry before issuing summons.
Chaudhry Hafeez Ahmad, Advocate Supreme Court instructed by Abdul Karim, Attorney for Petitioners.
Nemo for the State.
Date of hearing: 21st May 1968.
The respondent No. 2 filed a complaint against the petitioners under sections 148, 302/149, P. P. C. which was on recording preliminary evidence dismissed by Chaudhry Muhammad Yousaf, Magis trate 1st Class, under section 203 of the Code of Criminal Procedure. On a revision petition the Sessions Judge set aside the order of dismissal and directed that a further inquiry be held in the complaint. The complaint was accordingly entrusted to Mr. Abdul Waheed, Magistrate 1st Class, who directed that summons be issued to the petitioners .for holding an enquiry under Chapter XVIII of the Code.
Aggrieved with the order passed by Mr. Abdul Waheed the petitioners moved the High Court under section 439 of the Code of Criminal Procedure for its quashment on the ground that under section 436 it was incumbent upon Mr. Abdul Waheed to hold a fresh inquiry and if as a result of the inquiry he was of the opinion that there was sufficient ground for proceeding against them, only then could he issue summons. The contention was overruled by the learned Judge in the High Court on the view that no illegality was committed by the trial Magistrate in issuing summons to the petitioners.
Learned counsel was unable to make out that "further inquiry" provided for in section 436 of the Code of Criminal Procedure was confined to Chapter XVI. Nor could he cite any decided case in support of the contention. On the contrary we find cases in which it is laid down that if, in the light of the evidence already recorded, the Magistrate to whom a complaint is entrusted for further inquiry under section 436, finds that a proper case has been made out to summon the accused-persons no further inquiry is required. This appears to he the correct view and it was not shown to us that Mr. Abdul Waheed had not taken into consideration the evidence earlier recorded by Chaudhry Muhammad Yousuf.
In the circumstances the High Court has rightly refused to interfere with the summons issued to the petitioners for holding an inquiry against them under Chapter XVIII of the Code of Criminal Procedure.
The petition for leave to appeal is dismissed.
Leave refused.
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