2007 PLP 1031 (YLR)

M.A. SHAHID SIDDIQUI, J.--Through this petition under section 439, Cr.P.C. Ali Sher, petitioner, has challenged legality and propriety of order dated 9-9-2005, whereby the learned trial Court summoned the petitioner to face trial in a private complaint filed by respondent No.2 for offences under section 302 read with sections 34/109/218, P.P.C. and section 155, 156 of Police Order, 2002.

2. The facts of the case are that on 7-4-2004 at about 9-30 a.m. Shehzada Ghulam Abbas son of Mst. Khurshid Bibi, complainant, was murdered by Muhammad Azhar and Muhammad Arshad son of Ali Sher, petitioner in front of M.A.O., College, Lahore. Shehzada Ghulam Abbas was in injured condition, when he made a statement before Muhammad Nawaz, S.-I., in Emergency Ward of Mayo Hospital, Lahore at 3-40 p.m. According to the F.I.R. Shehzada Ghulam Abbas, deceased, had been living in Denmark along with his family for the last 15/16 years. He had come to Pakistan on 5-2-2004 to see his relatives. While on his way back to Denmark he along with his relatives came to Lahore on 6-4-2004 and stayed in Amir Hotel, Lahore. On the next morning i.e. the day of occurrence at about 9-30 a.m., the deceased in the company of his friend Riaz Sohail, his maternal uncle Javed and one Muhammad Shahid Tabassam, was proceeding in a Honda Civic Car towards Chauburji for hiring a Suzuki Pick-up for carrying luggage. When the car reached in front of MAO College, Muhammad Azhar and Muhammad Arshad, accused both armed with .30 bore pistol came from the rear on a motorcycle and fired at Shehzada Ghulam Abbas, deceased, from the left side of the car hitting him on his abdomen and legs. Both the accused then disappeared. The motive for ,the offence was that Shehnaz Bibi, sister of Shehzada Ghulam Abbas and her husband had been in occupation of the house of complainant at Harapa and looking after his property. Earlier Haji Muhammad Shafi, father of Shehzada Ghulam Abbas had come to Pakistan from Denmark along with his brother Haji Sher Bahadar in the month of Ramzan and died due to vomiting of blood. It was apprehended that he had been done to death by administering some poisonous substance and Haji Sher Bahadar. "Taaya" (father's elder brother) of the complainant/ deceased by preparing forged power of attorney. Shehzada Ghulam Abbas and his mother had contested the suit and filed written statement. On 2-3-2004 Haji Sher Bahadar while coming out of the Court room had threatened the complainant and his mother to kill in the presence of Muhammad Riaz. The complainant alleged that pursuant to the threat Haji Sher Bahadar in consultation with Ali Sher, petitioner and Norang, co-accused, attempted to commit his murder, but luckily he had escaped. Five/six days after the registration of the case Shehzada Ghulam Abbas died in the Hospital. In June, 2005 Mst. Khurhid Bibi, mother of Shehzada Ghulam Abbas filed a private complaint in respect of the same occurrence in which she implicated as many as nine accused including the petitioner. She alleged that she had also appeared before Investigating Officer and made a statement on 8-4-2004, which was shown to have been recorded by the Investigating Officer on 9-4-2004. She alleged that Riaz Sohail in whose company the deceased was proceeding towards Chauburji Chowk was in league with Muhammad Azhar and Muhammad Arshad, principal accused, who had committed the offence in pursuance of a conspiracy hatched by Sher Bahadar, Ali Sher petitioner, Fazal Hussain and Zameer Haider, co-accused in the Bethak of Sher Bahadar on 6-4-2004 at about 4-00 p.m. The learned trial Court recorded the statement of Mst. Khurshid Bibi, complainant, on 17-6-2005 and sent the case to Mr. Tahir Aslam, Judicial Magistrate Ist Class, Lahore, for inquiry under section 202, Cr.P.C. The learned Magistrate after recording the statement of. Riaz Hussain, Muhammad Javed and Muhammad Shahid Tabassam, P.Ws. found that prima facie, offence under sections 302/34/109/218, P.P.C. and under sections 155(b) and 155(c) of the Police Order, 2002 was made out against all the nine accused nominated in the private complaint. The learned Additional Sessions Judge, who was seized of the matter summoned the accused for facing trial vide order dated 9-9-2005. Hence this petition.

4. The learned counsel for petitioner argued that the complainant has involved the petitioner by fabricating false evidence, which is otherwise highly insufficient showing involvement of the petitioner in a case entailing capital punishment, as such the Inquiry Report and the impugned order both are illegal and liable to be set aside. He further argued that the petitioner has been falsely implicated simply because his son Muhammad Arshad has been ascribed the main role in the occurrence.

5. Shehzada Ghulam Abbas had been murdered in prosecution of conspiracy hatched by Sher Bahadar in his Bethak on a. day before the occurrence at 4-00 p.m. Basis for summoning the petitioner to face the trial for having conspired for Qatl-i-Amd of Shehzada Ghulam Abbas is the statement of Riaz Hussain dated 27-6-2005 recorded by the learned Judicial Magistrate Ist Class, Lahore. According to this statement Riaz Hussain and Shan Muhammad, P.Ws., went to the house of Sher Bahadar on 6-4-2004 at about 4-00 p.m. to enquire about their going abroad. When they reached near the Bethak they overheard Sher Bahadar saying:-- He further stated that when they entered the Bethak they found Sher Bahadar, Ali Sher, Zameer Haider son of Jahangir and Fazal Hussain son of Muhammad Yousaf present there. There is nothing on record to show that Ali Sher, petitioner, in the prosecution of the said conspiracy went to Lahore, contracted Riaz Sohail or took any step towards the commission of the crime. Mere presence of Ali Sher at the time of Sher Bahadar's utterances in the said meeting is not sufficient to show his involvement in the occurrence. The same utterance had been heard by Riaz Hussain and Shan Muhammad, P.Ws. but the only difference was that they were outside Behtak while Ali Sher was inside the Behtak I am of the considered view that in the absence of any other tangible incriminating material it would be highly unjust to put a person on trial on a capital charge. The complainant cannot be allowed to liberally widen the net and rope in innocent persons without any tangible evidence. The primary duty of the Courts is not to convict the wrong-doers but to save innocent persons from unnecessary rigors of trial. The trial of the accused would be an exercise in futility and sheer abuse' of law. Thus the impugned order dated 9-9-2005, whereby the petitioner has been summoned to face trial is held to be illegal and without any lawful justification.

6. In view of the above I accept this petition and set aside the impugned order to the extent of Ali Sher, petitioner. Revision petition accepted. H.B.T./A-234/L