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Criminal Miscellaneous Application No. Q. 577 of 1983, decided on 17th July, 1983.

-- Ss. 241, 265-C & 561-A-Penal Code (XLV of 1860), Ss. 340 & 391-Complaint case-Supply of copy of summary or gist of evidence-Gist of evidence already contained in complaint itself--- No separate document incorporating gist, held, was required to be submitted to Court for supply to accused.

---Ss. 241-A & 265-C-Examination of witnesses-Examination during preliminary inquiry of a witness by Court not named in com plaint, held, competent-Sections 241-A & 265-C, Cr. P. C. applic able after issuing of process-Proceedings of Court not defected by examining a witness even if same not named by complainant --Court, held further, has complete power to examine any witness at any stage.-[Witness].

--S. 561-A-Enmity-Enmity, held, a double-edged weapon and whether complainant falsely implicated accused for reason of enmity being a question of fact to be determined on basis of evidence.

--S. 561-A-Quashing of proceedings-Contentions raised in peti tion having no substance-Quashing of criminal proceedings against accused refused.

S. Nisar Hussain for Petitioner.

Date of hearing: 17th July, 1983,

The petitioner alongwith respondents Nos. 2 to 5, is standing trial before the Third Additional Sessions Judge, Hyderabad on charges of illegal confinement and dacoity in respect of the property of respondent- complainant, Muhammad Iqbal. This prosecution started on 1st March, 1979 on a direct complaint by respondent No. 1. Process has been issued and the case is pending. It is stated by learned Advocate that no witness has been examined so far.

The petitioner and the co-accused had earlier filed an application for quashment in this Court. This was registered as Criminal Miscellaneous Application No. 522/80. By an order of my learned brother Mr. Justice Z. C. Valiani, dated 4th February, 1982 this application for quashment was dismissed on the ground that it was not pressed because the applicant wanted to avail of the alternate remedy by way of an application under section 265(K), Cr. P. C. before the trial Court. An application was then made before the trial Court under section 265(K), Cr. P. C. and the same has been dismissed by an order of third Additional Sessions Judge, Hyderabad, Sind, dated 17th May, 1983. The present application is for quashment of the proceedings on the complaint.

The main argument of Mr. S. Nisar Hussain, Advocate is that the provisions of sections 241-A, Cr. P. C. and 265-C, Cr. P. C. had not been complied with. It is submitted that copies of the complaint have been supplied to the applicant and the co-accused but the gist of evidence had not been supplied. Subsection, (2) of section 241-A, Cr. P. C. reads as follows:-

"In all cases instituted upon a complaint in writing, the complainant shall:-

(a) state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist of the evidence which he is likely to adduce at the trial ; and

(b) within three days of the order of the Court under section 204 for issue of process to the accused, file in the Court for supply to the accused, as many copies of the complaint and any other document which he has filed with his complaint as the number of the accused:

Provided that the provisions of this subsection shall not apply in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his duties."

Section 265-C, Cr. P. C. also contains more or less similar provisions as section 2.41-A, Cr. P. C. Relevant provisions read as follows:-

"(2) In all cases instituted upon a complaint in writing, (a) the complainant shall-

(i) state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist of the evidence which he is likely to adduce at the trial; and

(ii) within three days or the order of the Court under section 204 for issue of process to the accused, file in the Court for supply to the accused as many copies of the complaint and any other document which he has filed with his complaint as the member of the accused;

(b) copies of the complaint and any other documents which the complainant has filed therewith and the statements under section 200 or section 202 shall be supplied free of cost to the accused not later than seven days before the commence ment of the trial."

On reading of the provisions reproduced above it would appear that the requirement of the law is that the complaint must contain the substance of the allegation, the names of the witnesses and the summary of the evidence which the-complainant is likely to produce at the trial. The other requirement of these provisions is that copies of the complaint should be filed in the Court and the same should be supplied to the accused. To such extent the learned Advocate makes no grievance, but hi grievance is that copy of the summary or the gist of evidence has not bee supplied. On a reading or the complaint one can never be in doubt the gist of evidence is contained in the complaint itself. The code does not state that a separate document incorporating the gist of evidence is to submitted in the Court for supply to the accused. Normally the complain itself states the nature and the gist of evidence that will be produced. There is no non-compliance with the aforesaid provisions of law.

The next ground urged by the learned Advocate is that during preliminary enquiry the Court had examined one Shahzad who had no been named as witness in the complaint nor shown as a witness in the, list of witnesses. It is contended that two provisions namely sections 241-A and 265-C of the Cr. P. C. require that the complainant shall state the names of his witnesses in the complaint. This however, does not mean that a person who is not named in the complaint as a witness cannot be examined at all, nor can it be said that merely for the fact of such a B person being examined as a witness, the entire proceedings will be defeated and case itself should be quashed. It has also to be taken into consideration that sections 241-A and 265-C of the Cr. P. C. would apply only after issuance of process. Even if the complaint did not name a particular witness, it cannot be held that the proceedings were vitiated only for such a reason, more so as the Courts have full and complete power t examine any witness at any stage. Taking a contrary view may often defeat the ends of justice. This contention is also without substance.

The next contention is that the case was malafide and was the result of previous enmity. Enmity is a double-edged weapon and whether the complainant has falsely implicated the accused for reasons of enmity is a question of fact which is to a determined on the basis of the evidence.

The learned Advocate has lastly contended that the allegation of complainant that the applicant and co-accused had beaten him and broken the ankle of his foot is belied by the comments that had been submitted before this Court in C. P. No. 2151 of 1979. It has been pointed out that when the respondent/complainant was produced before the S. D. M. for remand has made no complaint in regard to having been beaten by the accused persons. A copy of the comments submitted by the S. D. M. in the said Constitutional petition has been placed on record. I have seen the said comments and find that the S. D. M. has written that respondent/ accused has some trouble in the right foot and, therefore, the Superinten dent of Jail was directed to produce the complainant before the Medical Officer. Such certificate of the said medical officer before whom the complainant was produced has not been placed before me. This argument cannot advance the case of applicant.

I see no substance in this petition which is dismissed. I. however, direct the trial Court to hear this case, proceed with the same expeditiously, and dispose of within 6 months. Compliance be reported to this Court.

M. Y. H. Petition dismissed.

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