1990 PLP 1637 (MLD)

Kh. Shahad Ahmad for Petitioner. Respondents Nos. 2, 5, 6 & 7 in person. Sardar Abdur Rashid and Raja Muhammad Hanif Khan for Respondents Nos. 1 and

4. Nemo for Respondents Nos. 3 and

8. The instant revision petition is directed against the order dated 30‑12 1984 of District Criminal Court Muzaffarabad (hereinafter to be referred as Court below) by which the private complaint brought by the petitioner under section 4/5 Islamic Tehzeerati Quaneen Nafaz Act 1974 read with section 148/149, A.P.C. was dismissed at the preliminary stage.

2. The relevant facts of the case are that on 22nd of June, 1982 two sons of the petitioner were assassinated in a thickly populated part of Muzaffarabad 'town at about 8‑30 p.m. and as a result of the Police investigation, the respondents Amjad, Majeed sons of Muhammad Hussain, Dil Bahar son of Haji Hadaytullah, Ibrar Ehsan son of Raja Ehsan and Arafan Ashraf son of Sardar Muhammad Ashraf Khan were challaned in the Court of Sessions Judge Muzaffarabad for facing their trial under section 302/34 Penal Code for the alleged offence of double murder. Feeling dissatisfied with Police investigation, the petitioner Ghulam Rasool Mir brought a separate complaint before Court below alleging therein that the respondents Nos.1 to 7 are the persons responsible for murdering his sons and they should be tried under section 4/5 of the Islamic Tehzeerati Act 1974 read with section 148/149 of the Penal Code. At this stage of preliminary hearing, the complainant, examined Jameel Ahmad Butt. Muhammad Yousaf, Khawaja Muhammad Bashir, Abdul Jabbar, Habibullah Mir besides appearing himself in the witness‑box. He also produced attested copies of post‑motem reports Exs. PE, PF as well as P.1, P.2 photo copies of blood‑stained stones and A copy of the writ petition Exp. P.G. and some other documents relating to the misfortunate incident. After hearing the preliminary arguments, examining the record as well as the evidence on the file, the learned Court below came to the conclusion that no case was made out under section 4/5 of Islamic Tehzeerati Act against the respondents and dismissed the complaint. Hence, this revision petition before this Court. The unfortunate aspect of this petition is that it has been awaiting its disposal for the last six long years on the tile of Justice Retd. Qazi Abdul Ghaffor, J. before it was made over to the undersigned under a special order of appointment as Additional Judge of Shariat Court by the President Azad Government of the State of Jammu and Kashmir.

3. In their written statement submitted by respondents Muhammad Irshad Durrani and Javaid Durrani, it was submitted by them that the complaint‑brought by the petitioner against them being frivolous, baseless was rightly dismissed because no prima facie case was made out against them.

4. I have heard the arguments as were addressed at the Bar by the learned counsel of each party. I have also examined the record and evidence as was produced by the petitioner in support of the complaint. On behalf of the petitioner, it is argued that there is sufficient evidence on the file to justify proceedings against the respondents in the private complaint but it was dismissed as if the Court below was making a final judgment at the conclusion of the trial. The learned Court has failed to apply its mind to the evidence and record placed on the file which makes an overwhelming `prima facie' case for the trial of the respondents. A serious miscarriage of justice has taken place in which the merits of the complaint have been touched alongwith the relevant challan case pending with the Court of Sessions Judge Muzaffarabad. It is further submitted by the learned counsel that the impugned order dated 30‑12‑1985 be set aside and the Court below be directed to summon the respondents for facing their trial under section 4/5 of Islamic Tehzeerati Act before that Court. But the arguments of the learned counsel appearing for the respondents are that the impugned order amounts to acquittal and the present petition was not maintainable in law. P.W. Muhammad Yousaf is a chance witness and does not reside in Muzaffarabad Town. He is an inimical and tutored witness. He does not know the names of the respondents nor he was ever asked to identify them in any identification parade required to be held in that behalf. It is contended that their exist material discrepancies in the statements of this witness as are recorded by Ch. Muhammad Zakri Bhatti and Sardar Mushtaq Ahmad Khan learned Senior Members of the Court below. It is further submitted on behalf of the respondents that the motive ascribed to the respondents is unture. If the deceased Tariq Iqbal had apologised from the respondents for his evil deeds and the hostilities between victims and the respondents had ended in a compromise then there was nothing to motivate the respondents for committing the alleged offence. The complaint has been submitted before the Court below at a belated stage and there being no `prima facie' case against the respondents, it was rightly dismissed. In support of their arguments, the learned counsel for the respondents rely upon P L D 1978 Kar. 348, 355, 356, 1983 P Cr. L J 1051, P L D 1982 S C (AJ&K) 13,1985 SCMR page 257 and A I R 1957 (?) 886

5. The learned Court below has rejected the evidence of P.W. Abdul Jabbar on the grounds inter alia that:‑‑ (i) he is related to the complainant and is an interested witness; (ii) he has not seen the occurrence and if he had seen the same, he would have impatiently taken part for rescuing the deceased persons from being murdered. But he made no attempt to justify his presence on the spot. (iii)he approached Sadar‑ud‑Din a local chemist of Muzaffarabad Bazar for issue of medicines to him immediately after the alleged incident but he did not talk to him about the unfortunate incident; (iv)being a close relative of the deceased persons, he should have reported the matter to the Police Station but he did not do anything and remained inactive; The reasons that favoured the Court below does not sound well because the testimony of a witness cannot be rejected because of his relationship with the complainant. The witness has given a satisfactory explanation of his presence at the place of occurrence. It is stated by him that he was feeling pain in his abdomen and surely an ailing person could not do much at the most critical juncture. The news of the cold‑blooded double murder must have travelled through in every nook and corner of the town by that time when he would have approached to Sadar‑ud‑Din the local Chemist for issue of medicine to him and also because of his illness he might not have talked to him about the incident. The reason that he failed to make a report to the Police Station also does not carry any weight because a report in such serious cases is often made by a nearest relative of the deceased and Sarfraz Mir had already reported the matter to the Police. Muhammad Yousaf is the second eye‑witness produced in this complaint and his testimony is also disbelieved by the Court below for the reasons that he is a chance witness who had come from Rawalpindi immediately before the occurrence. He has tried to involve the respondents in the murder case despite the fact that he did not know them before nor any identification parade was ever held before him in accordance with the law. In his statement before the Court below constituted by Ch. Zakaria Bhatti Registrar High Court and Syed Ashraf Shah District Qazi, he did not name Arafan Ashraf, to be one of the accused respondents but in his subsequent statement before Sardar Mushtaq Ahmad Khan, Sessions Judge and District Qazi Muhammad Ashraf Shah, he has named Arafan Ashraf also to be one of the assailants. There may be some omissions and slipshods in the statements of the witnesses referred to above but in my opinion it was not the proper time for Court below to have a detailed scrutiny of the evidence placed on the file especially when in case of trial of the respondents the witnesses were to be re‑examined and subjected to cross‑examination besides carrying out their purgation in accordance with the provisions of the Act referred to. There does not exist any serious discrepancy in the statements of these witnesses and if there is anything that can be got explained at the time of cross -examination, I do not want to pick out holes in the judgment of the Court below on matters of detail but I feel that a broad view of the material points on consideration of the whole of the evidence should have been taken by the Court below. The weight to be attached to the testimony of a witness depends in a large I measure upon various considerations, i.e if on the face of it the evil is so much in consonance with other witnesses and generally so fits in with the material details of the case for the prosecution as to carry conviction of truth to a prudent mind. While going through the evidence on the file I find that the evidence on the file has got all the necessary elements to make out a `prima facie' case against the respondents. The case‑law cited by the learned Advocates for the respondents have no bearing so far the facts of the present case are concerned. I understand that the learned Court below has committed some material irregularities as are discussed in the paragraphs hereinafter:‑‑ (i)The complainant has produced two attested copies of the post‑mortem reports which lend sufficient support to the prosecution case but the learned Court below has not discussed the evidentiary value of these reports. (ii)There has been a long tussle between the complainant (petitioner) and Police Agency over investigation of the challan case. The complainant was not feeling satisfied with the proceedings taken by the Police and on a number of occasions he had submitted his complaints to numerous quarters of the Government about the failure of Police Agency to make proper investigation of his case. In his writ petition before the High Court, he has also highlighted the glaring instances in which the Police had failed to take proper action. Under such circumstances, it is of vital importance, that the Police reports and inquiries must not have been touched for the disposal of the present complaint. (iii)There remains, no doubt, about it that the challan case pending with the Court of Sessions Judge was also discussed in the impugned order as a part of the complaint. There is no provision of law in support of the plea that in the inquiry to be held under subsection (i) or investigation to be made under subsection (ii) of section 202, Cr.P.C. it is necessary for a Criminal Court to look into the reports submitted under section 174 or section I67, Cr.P.C. nor can it dismiss the complaint on the basis of such report. The Court can dismiss the complaint by looking at the complaint and the; evidence produced art support of the complaint. It is the Criminal Court itself which has to form its opinion on the basis of the material produced before it on the question whether the allegations made therein `prima facie' constitute an offence and as such furnish sufficient grounds for proceeding against the accused. This mode cannot be rendered ineffective because of the fact that during Police investigation the allegations made in the complaint are held not worthy of credence. The Police cannot be considered to be a party in the proceedings taken on private complaints and even the accused persons are not associated to be heard at the preliminary stage. Under section 202, Cr.P.C. a private complaint is not dismissed on the result.‑ of previously made Police inquiries and the inquiry is to be held with a fair mind: In the instant case the learned Criminal Court has discussed the proceedings taken by the Police in the challan case and has imported the view of the Police in support of the impugned order.

6. It is argued on behalf of the respondents that no motive is ascribed to the respondents for the alleged offence. It is on the file that there was some altercation between the deceased Tariq lqbal and respondents some days before the unfortunate incident and thereafter they had developed enmity between them. It is said that the deceased Tariq Iqbal had apologised from the respondents for his evil deeds and the grievances of the respondents having been redressed host they could once again launch further attack upon the deceased persons to put them to death. But there is some Plausible evidence on the file to how that the hostilities between the two rival groups, in fact had not ended before the occurrence.

7. It is next argued that the dismissal of the present complaint has resulted in acquittal of respondents of the charges brought against them and hence the present revision petition was not maintainable at this forum. I am afraid this is not the correct approach to law of criminal administration of justice. It is evident from the file that the respondents were never associated with the hearing of the present complaint. The acquittal of accused persons results in those cases where charges are properly‑ framed against there and they are tried before a Court of competent jurisdiction. Sine the respondents have not been tried before the Court below they cannot claim themselves to have beer, acquitted of the charges. The objection is devoid of force and the same is repelled.

8. In regard to belated submission of the complaint, it is sufficient to note here that in criminal prosecution there is no such thing as limitation. However, the longer a complaint is delayed the less become the chances of believing in its truth more particularly when it is based upon entirely oral evidence. The present complaint was brought before the Court below on 2‑3‑1983 while the incident had occurred on 22‑6‑1982. It shows that the complaint was brought after eight months of the occurrence but before filling the complaint, complaint had filed a writ petition also with this Court for establishing the absence of bona fides and genuine investigation by the Police. The writ was brought on 9‑9‑1982 and was disposed of on 17‑1‑1983 and, thereafter, another application was moved by the complainant before Supreme Court for seeking permission to file complaint against the alleged murder of his sons with the Court of competent jurisdiction although it was hardly necessary. Hence, there seems no delay on the part of the complainant in filing the complaint. The objection is repelled.

9. For the reasons given above I find the Court below has committed material irregularities in appraising the evidence on the file. The impugned order is found perverse and not maintainable in law. Therefore, the revision petition is accepted and after setting aside the impugned order, the complaint file is remanded to the Court below for re‑consideration of the evidence available on the file. (The words "further inquiry" as contained in section 436, Cr.P.C. also includes re‑consideration of existing evidence P L D 1961 (V.P.) Lah. 783). The complaint file shall be sent back to the Court below with the direction that it must be disposed of within a fortnight period after considering the evidence available on the file. The respondents are directed to appear before the Court below on 24‑4‑1990 for receiving further order from that Court. N.H.Q./109/Sh.C.A. Case remanded.