1989 PLP 2799 (MLD)

Muhammad Hayat Junejo for Respondents Nos. 2, 3, 5 to

7. Date of hearing: 16th February, 1989. This criminal revision application under sections 435 and 439, Cr.P.C. is directed against the order, dated 30-8-1987 of Additional Sessions Judge, Thatta whereby he dismissed the complaint of applicant Wahid Bux under section

203. Cr.P.C. The facts are that applicant filed direct complaint in the Court of Civil Judge and FCM under section 302, read with 149, P.P.C. The same was forwarded to Additional Sessions Judge who by impugned order dismissed the same. There was encounter between smugglers and customs authorities in which Allah Dad and Arab were killed. The custom authorities filed case and also arrested one accused Adam who finally pleaded guilty before the trial Court and was convicted. The case of the complainant is that due to enmity Allah Dad and Arab ere murdered and they were not smugglers. I have heard Mr. Azizullah K. Sheikh for the applicant. He has argued that during the preliminary enquiry all the witnesses have supported the case of complainant but learned Additional Sessions Judge has not appreciated their evidence and wrongly dismissed the complaint. Mr. Muhammad Hayat Junejo appearing for the respondents argued that there was delay in lodging the direct complaint and this complaint was filed by the smugglers to harass the custom authorities, therefore, the order by which the case was dismissed is in accordance with the law. It is an admitted position that some incident took place in which both the deceased were killed and custom authorities filed a case against the deceased as well as against Adam Shah who was arrested on the spot. The cases filed by the custom authorities were under sections 307 and 353/34, P.P.C. and Customs Act. The co-accused Adam Shah was sentenced to suffer R.I. for six months and fine of Rs.5,000 under section 307, P.P.C. as he pleaded guilty to the charge. I have gone through the order of the learned Additional Sessions Judge. The admitted position is that deceased were killed but the. only point which is to be determined is whether the customs authorities have a right of self-defence to I commit murder of the deceased as from the papers it appears that none of them sustained injuries. In these circumstances in view of P L D 1971 SC 713 and 1984 P Cr. L J 2240 the Court has to determine and consider the counter-version. However, without making any observation on the merits of the case and going into details I am of the view that learned Additional Sessions Judge has not fully appreciated the facts of the version given in this counter-complaint and dismissed the same. 1, therefore, set aside the impugned order and remand back the case to the learned Sessions Judge, Thatta, who should apply his mind and pass an appropriate order on the evidence adduced during the primary enquiry and consider other factors. N.H.Q./W-42/K Order accordingly.