1977 PLP 48 (SCMR)

MUHAMMAD GUL, J.‑This appeal, by special leave from the order of the Lahore High Court dated 24‑10‑1974 allowing a criminal revision under section 439, Cr. P. C. by Muhammad Sharif respondent 1 herein, arises in the circumstances set out below. Mst. Janat Bibi wife of Muhammad Sharif (respondent No. 1 herein) was found murdered in her house on the night between 25th and 26th December 1972. She was then living with her husband who lodged a report on the following morning in which he named the appellant herein and four others as being concerned in the murder of Asst. Janat Bibi and an attempt on the informant's life. Accordingly, a case under sections 148 and 302, 307, 452 read with section 149, P. P. C. was registered. The police investigation however, boomeranged on the informant for the investigation tended to show that respondent 1 himself had killed his wife but had falsely accused the appellant and the four others named with him in the F. I. H. On the basis of the police report enquiry proceedings against respondent were initiated. He was arrested and later refused bail. During the pendency of the enquiry against him while the respondent 1 was still in the lock‑up, he filed a private complaint repeating the allegation in the F. I. R. and accusing the appellant and four others already named as being responsible for murder and other offences. The complaint however, was dismissed summarily. Revision under section 435, Cr. P. C. filed by respon dent No. 1 was also dismissed by an Additional Sessions Judge, Lahore. A further revision to the High Court under section 439, Cr. P. C. however, succeeded. A learned Judge basing himself on this Court's decisions in the case of Noor Ilahi (P L D 1966 S G 708) and Muhammad Sadiq (P L D 1971 S C 713) held that the Enquiry Magistrate should have had disposed of the private complaint simultaneously with the counter case based on the police report. Accordingly, the case was sent back to the Enquiry Magistrate for disposal "along with the challan case". It appears however, that the learned Judge gave notice only to the State; notices to appellant or the other four persons named as accused with him in the F. I. R. were not issued. Leave was therefore, granted to consider whether the learned Judge was right to remit the case to hold fresh enquiry against the appellant and the four accused named with him without issuing any notices to them in the second revision under section 439, Cr. P. C. During the course of the argument in the case, it transpired that the Enquiry Magistrate had not summoned the appellant herein and the four others named with him as accused in the F. I. R. Notices were not sent to them by the learned Additional Sessions Judge either while dismissing the first revision under section 435, Cr. P. C. Since they had not been summoned earlier, the learned Judge thought it fit to issue notice to the State only and did not consider it necessary to issue notices to the appellant and the other four named with him in the F. I. R. It is however, important to point out that the impugned order did not go so far as to direct the Enquiry Magistrate to summon the appellant and four others named with him. Rather it appears that on the basis of the evidence already recorded under section 202, Cr. P. the learned Magistrate independently summoned the appellant and the other four named with him as accused firstly in the F. I. R. and then in the comp laint. On that view of the matter the order of the learned Single Judge is unassailable. There is yet another aspect of the matter. It was pointed out by learned counsel for respondent 1 that the appellant even went in revision under section 435, Cr. P. C. against the order of the Enquiry Magistrate summoning him and the other four accused in the complaint. The revision was dismissed by an Additional Sessions Judge. These facts are not controverted. No further revision was taken to the High Court. Therefore, the revisional order by the learned Additional Sessions Judge has attained finality which it is not possible to ignore in deciding the appeal. However, that may be, the order of remand would hardly justify inter ference by this Court for no procedural illegality has been committed. The appeal is accordingly dismissed. Appeal dismissed.