1988 P Cr (PLP)

Date of hearing: 27th October, 1987. This is a criminal revision under section 436/439 read with section 561-A, Cr.P.C. filed by the complainant /applicant for setting aside the order, dated 22-12-1986 passed by the learned IIIrd Additional Sessions Judge (East), Karachi while dismissing the direct complaint filed by the applicant. The brief facts giving rise to the present case are that the applicant filed a direct complaint No. 1999/85 against the respondents Nos. 1 to 4 under sections 436, 326, 147, 148 and 149, P.P.C. inter alia alleging therein that he was working as a conductor on Bus No. 834-636 on route 'Y' Karachi, while the driver of the bus was Sadaqat Ali son of Nazir Khan. That on 17-7-1983 the complainant was on duty on the above bus alongwith driver Sadaqat Ali, and when the bus reached near the shop of Haji Juma Khan known as Abdul Karim & Bros. Iron and Steel Works, Karachi, at 6-30 p.m. one passenger Mohammad Din ordered the complainant to stop the bus. Since it was not a regular/ approved bus-stop the complainant and the driver refused to stop the bus due to the fear of being challaned by police. The said passenger Mohammad Din was annoyed and called names to the complainant. In the meanwhile Asif Mahmood a friend of Muhammad Din caught hold of complainant and both of them dragged him out side the moving bus. The complainant was pushed out who fell down, while Mohammad Din and his friend Asif Mahmood jumped out of the bus near the said shop. That the bus was stopped, Asif Mahmood and Muhammad Din went to the shop and brought iron bars from the Iron and Steel Works and started beating the complainant and the driver, who had come to rescue the complainant. That the above two joined by the rest of the accused and they attacked the complainant and the driver. while the passengers and other passersby gathered there who were trying to rescue the complainant and the driver. That accused Asif Mahmood gave blows with the iron bar on the leg of the complainant while rest of the accused hit him and the driver with fists and kicks. The accused No. 4 Master Rahmat Ali is alleged to have instigated the rest of the accused. That during this incident many people assembled at the stop and there was a free for all as a result of which Mohammad Din, the brother of Abdul Karim and others received injuries besides the complainant and driver Sadaqat Ali. Thereafter, the bus was set on fire at the instigation of accused/ respondent No.

4. That the complainant and the driver apprehended that they would be killed, managed to escape from the unruly mob and ran away from the Wardat. Thereafter, the accused/ respondent No.4 incited the crowd and they went to the hotel of Abdul Qayum and looted the cash, and caused damage to the hotel. That the complainant went to the Malir P.S. to lodge a report but the same was not recorded Subsequently; the complainant was arrested and involved in the murder case alongwith driver Sadaqat Ali. The above complaint was filed on 16-10-1985 before the learned Sessions Judge, Karachi East, who forwarded the same to A.C.M. IIIrd, East, for enquiry ,and report. The learned A.C.M. IIIrd examined P.Ws. Idris, Ghulam Shabbir, Sadaqat Ali, Abdul Qayum and Sain Mohammad and sent the papers back to the learned Sessions Judge. The learned Sessions Judge returned the papers to the A.C.M. concerned for his report, but in the meanwhile the previous A.C.M. was transferred and he was succeeded by a new A.C.M. who sent his report. The learned Sessions Judge on receipt of report considered the evidence and dismissed the complaint, on 22-12-1986, and the present revision is directed against the said order. I have heard Mr. A.Q. Halepota, learned counsel for the applicant, Mr. Niaz Ahmed Khan learned counsel appearing for the State, while Mr. M.I. Memon was absent. The order-sheet shows that this case was filed on 13-1-1987 on which it was adjourned at the request of Mr. M.I. Memon. Again on 20-4-1987 Mr. Raja Qureshi requested for adjournment on the ground that Mr. Memon was out of station. Again on 12-5-1987, 14-12-1987 and 25-8-1987 the case was adjourned at the request of Mr. M.I. Memon. On 6-10-1987 the case was adjourned at the request of Mr. Memon. Even today Mr. Raja Qureshi appeared in the Court and requested for adjournment on behalf of Mr. Memon. Mr. A.Q. Halepota, learned counsel appearing for the applicant opposed the request for adjournment on the ground that the matter is pending since January, 1987 and Mr. M.I. Memon has obtained number of adjournments on one or the other ground, and therefore, the request was not acceded to and the matter was proceeded with. It was contended by Mr. Halepota learned counsel for the applicant that the F.I.R. No. 211/85 of the murder case was lodged by one Haji Juma Khan respondent No.1 on 17-7-1985 at 9-00 p.m. at P.S. Malir. That thereafter S.H.O. Khurshid Ahmed Narejo started investigation and went to the place of Wardat and sent a report under sections 436, 147 and 323. to the Duty Officer P.S. Malir, Karachi, which was registered at 9-00 p.m. This report shows that while Investigating Crime No. 211/85 he had come to know that Master Rahmat and a Pathan with greenish eyes alongwith 40/50 persons reacted with common intention and set on fire the Mazda Bus No.864-636 route Y. The driver of bus Sadaqat Ali and conductor Iqbal were beaten and a hotel was also damaged. He has further contended that the applicant had gone to the police station but his F.I.R. was not recorded and he was arrested. That the applicant and P.W. Sadaqat Ali were referred to the C.M.O. Jinnah Post Graduate Centre where they were examined by a Doctor. That the evidence produced in P.E. prima facie made out a case for issuance of process. He has further contended that since it was a counter-version and the police had not challaned the accused in Crime No.211/85, the learned Sessions Judge had erred in dismissing the complaint. In support of his contention he has relied upon 1981 F Cr. L J 264,1988I' Cr. L J 1130; 1985 P Cr. L J 2555 and P L D 1982 Kar.

600. Mr. Niaz Ahmed Khan learned counsel appearing for the State has contended that no report was lodged by the applicant with police, and when the police went to the Vardat he was not available there. That if the police had refused to register F.I.R., then the applicant should have moved applications to the higher authority. That the complaint was filed in October, 1985 mala fide in order to make out a counter-version. I have considered the contentions of the learned counsel and have gone through the documents produced alongwith the revision application. The bare reading of the impugned order will show that the learned Sessions Judge had sent for the report from the learned A.C.M. IIIrd and had considered the same which was illegal which is clear from the following passage:- "The learned A.C.M. IIIrd (East) Karachi recorded the statements of the witnesses produced by the complainant before him and has submitted his report which is available on record. The learned A.C.M. has given his opinion in his report that, the present complaint is nothing but a counterblast by the accused persons against the eye-witnesses of the murder case, pending trial against them before this Court and as such no case is made out against the abovenamed respondents /accused persons in the complaint." Again in the concluding para. the learned Judge has observed as under:- "In view of my above discussion I am clear in my mind that the present complaint is nothing but a counterblast by the accused persons against the complainant and the eye-witnesses of the murder case pending before this Court against the complainant and his companion Sadaqat Ali and the delay in filing the present complaint clearly shows that this complaint has been filed by the complainant in order to minimise the gravity of his offence. I, therefore, do not see any substance in the present complaint. Hence it is dismissed." The passages quoted above from the impugned order clearly show that the learned Judge was led away by the report submitted by the A.C.M. III which was illegal inasmuch as the learned Judge was expected to form his own view of the matter and he could not consider the above report for the purpose of deciding the question of issuance of process. The admitted position is that when S.H.O. Khurshed Narejo went to the place of Wardat he came to know that Master Rahmat accused/ respondent No.4 and a Pathan with greenish eyes alongwith 40/50 persons had reacted with common intention and set on fire Mazda Bus No. 864-636 route 'Y'. The driver of the Bus Sadaqat Ali and conductor Iqbal were also beaten and a hotel was damaged. This F.I.R. was sent to the Duty Officer P.S. Malir who had registered the same as Crime No. 212/85. In view of the above position and the explanation of the complainant that when he went to the police station to lodge the report, the police refused to register his F.I.R. and he was arrested and challaned in the present case, the delay in filing the direct complaint could not be considered as fatal, as the complainant/applicant had given an explanation for the delay which appeared to be reasonable. In Nazir Ali v. The State P L D 1974 Kar. 369 it was observed by this Court that as regards the objection that the complaint was filed after a delay of 9 months, the complainant has offered a satisfactory explanation and he has stated that he lodged a report with the police but no action was taken and thereafter he approached the Martial Law Authorities but he could not get redress even then, and, therefore, it was held that the delay was sufficiently explained. In Sajan Dass v. The State P L D 1982 Kar. 600 the above view was accepted and it was held that 'the learned Magistrate erred in holding that there was any delay in filing of complaint as the delay if any, was sufficiently explained'. This brings me to the next important question with regard to the merits of the case asp well as the maintainability of the direct complaint. As far as the merits of the case were concerned the counter-version was supported even by the F.I.R. No. 212/85 lodged by S. H.O. Khurshid Ahmed Narejo. This F.I.R. shows that the bus belonging to the complainant party was set on fire. The complainant and driver Sadaqat Ali were attacked and even a hotel was damaged. Therefore, the version of the complainant /applicant could not be said to be afterthought or counterblast to the murder case filed by respondent Haji Juma. The evidence of the complainant was supported by as many as five witnesses out of which the presence of witness Sadaqat Ali at Wardat was admitted even by the other side in their F.I.R. For the purpose of issuing process, the learned Judge was not expected to go into detailed discussion of the merits of the case but he had simply to see whether any prima facie case was made out. Moreover the police had failed to challan the counter-case for which report was lodged by S.H.O. Khurshed Ahmed Narejo although when there were counter-versions it was the duty of the S.H.O. to have challaned the two cases before the Court, and it was for the Court to decide the fate of the same. In view of the fact that the police have failed to challan the counter-case, the filing of direct complaint with a counter-version was quite justified and there was no illegality. In Mohammad Ajmal v. Ghulam Bashir 1988 P Cr. L J 1130 it was observed that 'without taking into account the injuries suffered by the complainant and his witnesses, trial Court jumped at the conclusion that the complaint has been filed to put up a defence in the cross-case. In my view merits of the evidence on record should have been considered and thereafter finding on that evidence should have been given. In view of the matter the order was rightly set aside by the learned Sessions Judge and the petition before the High Court was dismissed'. In case of Ali Sher v. The State 1985 P Cr. L J 2555 it was observed by this Court that 'the observations of the learned trial Judge clearly show that he gave his finding with regard to the version given in the direct complaint without saying anything about the truth or falsehood, of the other version contained in the F.I.R. Even though the learned Judge has not expressed his view about the later version, yet in view of his observation referred to above about the case of the applicant in the direct complaint he may be held to have indirectly declared the version of the respondent party as true. Such a declaration was obviously premature and was bound to prejudice the applicant party in the police case. It appears that the learned Judge in making the above observation was influenced more by delay in lodging the direct complaint, although the applicant has attempted to explain the delay, and the learned Judge has to examine its effect in the light of whole mass of material for arriving at a definite conclusion. It was presumed to have disposed of the case of the applicant on the ground of delay'. It was further observed that 'for arriving at right conclusion all the above factors are to be taken into consideration. This is possible when both the versions are before the trial Court. In such circumstances it was ill-advised to make unilateral decision by deciding the fate of one case leaving the other case to be pending, and therefore, the impugned order was set aside, and the matter was remanded back for further enquiry. From the above factual as well as legal position it is clear that the learned Judge had erred in dismissing the complaint of the applicant specially when it was a counter-version for which even 'the S.H.O. himself had lodged a report. Even the order of the learned Judge shows that the complainant and P.W. Sadaqat Ali were referred to the Medical Officer and they had injuries on their persons. I, therefore, allow this revision, set a aside the impugned order passed by the learned IIIrd Additional Sessions Judge, Karachi East on 22-12-1976, and remand the matter back to the learned Sessions Judge Karachi (East) for further enquiry. The learned Sessions Judge will either hold further enquiry himself or send it to any other Judge, other than Mr. Mohammad Matin Siddiqui, who had passed the impugned order. The learned Judge who holds the further enquiry is directed to summon C.M.O. Jinnah Post Graduate Medical Centre and Mr. Khurshed Ahmed Narejo the then Inspector Police Malir, examine them, and thereafter, dispose of the matter in accordance with law. I had decided the above revision by a short order on 27-10-1987 and these are the reasons foe the same. S.A./M-404/K Case remanded.