2003 PLP 1804 (YLR)

Manzoor Hussain v. The State PLD 1998 Lah. 239; Sherin Bacha and others v. Namoos Iqbal and 3 others PLD 1993 SC 247; Mazhar Hussain and others v. The State and others 1993 PCr. LJ 576 and Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121 ref. Malik Abdus Sattar Chughtai for Petitioners. Najeeb Faisal Chaudhary, Addl. A.-G. for the State. The petitioners seek quashment of F.I.R. No.279 of 2000 dated 12-8-2000 under sections 302, 234, 109 and 34, P.P.C. registered with Police Station Jhal Chakyan, District Sargodha at the instance of Naseer -ud-Din and consequent thereto proceedings pending before the learned trial Court in the said case.

2. Brief facts of the case are that Naseer-ud-Din got F.I.R. No. 279 dated 12-8-2000 recorded with the allegations that on 12-8-2000 at Maghribwaila, the complainant alongwith Haji Muhammad Zubair son of Haji Sher Muhammad uncle, Abdul Ghafoor son of Atta Muhammad and Sher Afzal were going towards the house of Syed Amanat Ali Shah to offer "Fateha". On the way when they reached near "Baithak of Azmat Khan, where Azmat Khan and Ghulam Hussain were sitting, on askance, they also set there. In the meanwhile Nasir Abbas and Tahir Abbas sons of Mashooq Jillani armed with .12 bore Pump Action and .12 bore double-barrel gun, Fakhar Abbas son of Muhammad Aslam, Rehan son of Khan armed with .12 bore double-barrel gun arrived there. Nasir Abbas raised Lalkara to the effect that Haji Zubair be not go alive and he has come to take his revenge and suddenly made two fire shots from his .12 bore gun Pump Action at Haji Zubair hitting on his different parts of body. Tahir Abbas also fired from his .12 bore double-barrel gun hitting Azmat Khan. Ghulam Hussain ran towards room on which Fakhar Abbas fired from .12 bore double-barrel gun hitting Ghulam Hussain on his belly. Rehan fired with his .12 bore gun hitting Azmat Khan on his left thigh.. The complainant Abdul Ghafoor and Sher Afzal saved themselves by entering into room. The accused decamped from the place of occurrence. Haji Zubair was taken to the hospital where he succumbed to the injuries.

3. The grounds urged before me are that Muhammad Zubair was murdered by unknown assailants and the petitioners have been implicated due to previous enmity; Malik Mushtaq Jillani and Muhammad Aslam were arrayed as abettors due to their relationship with the co-accused; the petitioners were declared innocent and were placed in Column No.2 of report under section 173, Cr.P.C. and challan was submitted in ATC, Sargodha Division, Sargodha; the complainant also filed private complaint before the same Court but the learned Special Judge transferred the challan case as well as private complaint to the Court of Sessions Judge due to lack of jurisdiction. The matter was entrusted to the learned Additional Sessions Judge who summoned the petitioners in a private complaint which was dismissed as withdrawn vide order dated 11-3-2003, therefore, it has been argued that after dismissal of the private complaint, no material was available before the trial Court to summon the petitioners to face the trial in the challan case. It has also been argued that dismissal of private complaint amounts to acquittal of accused/petitioners, thereafter they cannot be tried in the challan case and their application moved under section 265-K, Cr.P.C. has been wrongly declined vide order dated 7-4-2003. In support of contentions learned counsel has placed reliance on "Manzoor Hussain v. The State" PLD 1998 Lahore: 239, Sherin Bacha and others v. Namoos Iqbal and 3 others" PLD 1993 SC 247, "Mazhar Hussain etc. v. The State etc." 1993 PCr.LJ 576 and "Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others" PLD 1978 SC 121.

4. I have given due consideration to the contentions raised at the bar and also perused the documents attached with the petition and case-law referred to above. I find that the petitioners were nominated in the F.I.R. with specific role. The prosecution witnesses still support the prosecution story. The copies of statements of the P. Ws. under section 265-C, Cr.P.C. have already been delivered. The petitioners moved petition under section 265-K, Cr.P.C. which has been dismissed by the learned Judge vide order dated 7-4-2003. As the copies of statements of P.Ws. have already been delivered wherein the petitioners have been attributed specific role. The charge is yet to be framed. Sufficient material is available on record against the petitioners. No illegality is pointed out for interference to well-reasoned order passed by following the ruling of Apex Court. The case-law referred to above by the learned counsel for the petitioners is no applicable to the facts and circumstances of the present case, so petition is dismissed in limine. N.H.Q./M-1825/L Petition dismissed.