1993 PLP 573 (MLD)

Mehdi IlYas Akhtar Cheema for Respondents. Khalid Mehmood Farooqi for the State. Date of hearing: 15th November 1992. This revision petition arises from an order passed by the learned Additional Sessions Judge, Mianwali on 19-9-1989 whereby he held that the respondents who were accused in a private complaint filed by the petitioner under section 302/452/148/149, P.P.C. can be held for charge of culpable homicide not amounting to murder under section 304(11), P.P.C. and not under section 302/148/149/452, P.P.C.

2. The brief facts of the case are that the respondents police officials raided the house of the petitioner to effect his arrest as according to, them he was required in criminal cases. The raid was resisted by Alam Khan alias Kala deceased brother of the petitioner and there was an exchange of firing, as a result of which Alam Khan alias Kala died and the police officials also sustained injuries.

3. The respondents-police officials did not register any case at the instance of the petitioner rather they registered a case under section 307, P.P.C. against the deceased and others for causing them injuries and also for resisting the arrest. The petitioner filed a private complaint under section 302/452/148/149, P.P.C. alleging that the respondents had committed the murder of his brother while doing trespass into their house after forming an unlawful assembly. The learned Additional Sessions Judge after recording the preliminary evidence found that the respondents were liable under section 304, Part 11, P.P.C. and not under section 302, P.P.C. The petitioner aggrieved filed a Criminal Revision No.544 of 1987 in this Court, which was dismissed in limine with the direction that the petitioner could effectively raise this objection before the learned trial Court at the time of framing of the charge. The learned trial Court at the time of framing of the charge again held that the respondents can only be prosecuted for offence under section 304, Part 11, P.P.C. and they should be charged accordingly and the private complaint was sent to the learned Magistrate Section 30 Mianwali for trial vide order, dated 19-9-1989. Hence this revision petition.

4. I have heard the learned counsel and have also gone through the evidence and material available on record. I find that the petitioner earlier moved this Court through Criminal Revision No.544 of 1987 when the learned Additional Sessions Judge summoned the respondents as accused under section 304, Part 11, P.P.C. and not under section 302, P.P.C. The learned Judge of this Court heard the counsel at length and dismissed the revision in limine, with the direction that the petitioner can effectively raise such objection before the learned trial Court at the time of framing the charge against the respondents.-I also find that admittedly all the respondents are police officials and the petitioner was required in criminal cases and they raided the house of the deceased for his arrest and there was an exchange of firing, as a result of which some police officials also sustained injuries and the deceased also received? injuries at the hands of respondent No.

4. Neither it is a case of premeditation nor there was ill-will or enmity of the respondents with the deceased, which can be highlighted by any evidence on the record. The deceased was wanted by the police who resisted and started firing upon the police party. In this view of the matter, the case against respondents clearly falls under exception 3 of section 300, P.P.C. being a culpable homicide not amounting to murder falling under section 304, Part II, P.P.C. From the evidence on record and in view of the material placed on record, it is proved that Alam Khan alias Kala had sustained injuries while the respondents were engaged in performance of their official duty and in this view of the matter, intention to commit murder, prima facie, would not be attributed to them.

5. Resultantly, I find no force in this revision petition, which is dismissed. N.H.Q./M-694/L ??????????????????????????????????????????????????????????????????? Revision petition dismissed.