2014 P Cr (PLP)

ABDUL SAMI KHAN, J.

Through this single judgment I propose to decide the instant revision petition along with Criminal Revision No. 199 of 2012 filed by Amanat Ali and Muhammad Abdullah as both these petitions have been assailed against the impugned order dated 9-2-2012 passed by the learned Additional Sessions Judge, Sheikhupura through which he has declined to summon Mst. Khalida Bibi accused/respondent No. 2 in Criminal Revision No. 318 of 2012 whereas in the same order he has summoned Amanat Ali and Muhammad Abdullah accused/petitioners in Criminal Revision No. 199 of 2012 in a private complaint instituted by Mushtaq Ahmad complainant titled as Mushtaq Ahmad v. Maqbool Ahmad and 5 others in respect of offences under sections 302/109/34, P.P.C.

2. The germane events formulating the background of these petitions are that Mushtaq Ahmad complainant had lodged F.I.R. No.370/10, dated 9-7-2010 for an offence under section 302, P.P.C. read with section 34, P.P.C. at Police Station Saddar Farooqabad, District Sheikhupura for the murder of his nephew namely Sajjad Haider. In the F.I.R. the complainant nominated Maqbool Ahmad and two unknown persons who have committed the murder of Sajjad Haider deceased by inflicting chhuri blows. The complainant had also involved two accused persons namely Jameel Ahmad and Khasnood Ahmad but during the investigation both of them were found by the Investigating Officer to be innocent. Being dissatisfied with the outcome of the investigation, the complainant Mushtaq Ahmad instituted a private complaint wherein the accused persons namely Amanat Ali and Muhammad Abdullah, petitioners in Criminal Revision No. 199 of 2012, were summoned to face trial whereas their co-accused Mst. Khalida Bibi, respondent No. 2 in Criminal Revision No. 318 of 2012 was declined by the learned Additional Sessions Judge, Skeikhupura to be summoned after perusing the cursory evidence led before it by the complainant Mushtaq Ahmad and other P.Ws. The complainant has filed the instant Criminal Revision bearing No. 318 of 2012 against the impugned order through which the learned trial Court refused to summon Mst. Khalida Bibi as an accused whereas her two co-accused namely Amanat Ali and Muhammad Abdullah have challenged their summoning order before this Court through a separate Criminal Revision bearing No. 199 of 2012 as they have been summoned as accused to face trial.

3. The learned counsel for the petitioner in Criminal Revision No.318 of 2012 submits that the impugned order dated 9-2-2012 is illegal, hence Mst. Khalida Bibi accused is liable to be summoned to face trial. The complainant Mushtaq Ahmad produced two witnesses namely Shafaqat Iqbal and Muhammad Sarwar who have overheard Mst. Khalida Bibi accused hatching conspiracy along with her co-accused namely Amanat Ali and Muhammad Abdullah, sons of Muhammad Abdullah(sic.) for committing the murder of Sajjad Haider deceased. Both the P.Ws. in their cursory statement have levelled specific allegations upon respondent No.1 but this fact has not been taken into consideration by the learned Additional Sessions Judge while passing the impugned order. On the basis of same evidence the learned trial Court has summoned Amanat Ali and Muhammad Abdullah to face trial as conspirators but the same set of evidence has been disbelieved by the learned trial Court to the extent of respondent No.

1. It is a heinous offence in which a young man has been brutally murdered by conspiracy hatched by respondent No. 1 and her co-accused namely Amanat Ali and Muhammad Abdullah. The impugned order is result of misreading and non-reading of cursory evidence and that of the complainant. In private complaint the learned trial Court has only to see if prima facie case is made out and the accused have to be summoned but in this case the learned trial court has failed to perform its duty as per mandate of law which has caused grave miscarriage of justice in this case.

4. Nobody has entered appearance on behalf of the petitioners in Criminal Revision No. 199 of 2012 so I would not like to adjourn these matters which are hanging fire since 21-3-2012 and deem it appropriate to decide the same with the assistance of learned Deputy Prosecutor-General.

5. The learned Deputy Prosecutor-General who is present on Court's call has vehemently opposed the contention raised at bar by the learned counsel for the petitioner in Criminal Revision No. 318 of 2012 and submits that there is no illegality or irregularity in the impugned order dated 9-2-2012 passed by the learned Additional Sessions Judge, Sheikhupura and has supported the impugned order to the extent of Amanat Ali and Muhammad Abdullah. 6(sic.) After hearing the learned counsel for the parties and going through the record of this case it has been observed by this Court that Mst. Khalida Bibi, Amanat Ali and Muhammad Abdullah accused were not named by Mushtaq Ahmad complainant in case F.I.R. No.370/10, dated 9-7-2010 for an offence under section 302, P.P.C. read with section 34, P.P.C. at Police Station Saddar Farooqabad, District Sheikhupura for the murder of his nephew namely Sajjad Haider but later on outcome of the investigation prompted the complainant to institute a private complaint involving Mst. Khalida Bibi, Amanat Ali and Muhammad Abdullah two real brothers as abettors. After recording cursory statement Amanat Ali and Muhammad Abdullah accused have been summoned by the learned trial Court to face trial vide impugned order dated 9-2-2012 whereas through the same order Mst. Khalida Bibi was not summoned as an accused to face trial. An overwhelming analysis of this case shows that there is no denying of the fact that neither the names of accused person, i.e. Mst. Khalida Bibi, Amanat Ali and Muhammad Abdullah figured in the F.I.R. nor any allegation of abetment had been levelled against anybody. I have gone through the contents of the complaint instituted by Mushtaq Ahmad complainant with great care and caution and found that the complainant has not levelled allegation against the police that it had not recorded his statement correctly rather the allegation had been levelled by him against the Investigating Officer that he had not recorded statements of his witnesses under section 161, Cr.P.C. correctly meaning thereby the F.I.R. was recorded correctly. Thus, it does not lie in the mouth of the complainant at belated stage to pour scorn on registration of F.I.R. in an incorrect manner wherein he had remained unable to connect the above said accused with the commission of murder of his nephew. Moreover during the investigation of and till submission of challan the complainant has not recorded any statement involving Mst. Khalida Bibi, Amanat Ali and Muhammad Abdullah. In the backdrop of such a situation it has become apparent that after thinking over the matter the complainant has instituted the private complaint by making some dishonest improvement and has introduced the accused persons mentioned above as abettors with a delay of six months after the registration of F.I.R. because admittedly F.I.R. was registered on 9-7-2010. Moreover another significant feature of this case is that the accused persons are residents of Daska and they are not residents of the area where the occurrence has taken place, thus, it does not appeal to a prudent mind that the accused residing at Daska would hatch conspiracy in Sheikhupura especially when no justifiable reason has been advanced by the prosecution for their presence at Sheikhupura and also presence of the witnesses at a place where the alleged conspiracy has been hatched by the accused persons. Thus, the order of summoning accused Amanat Ali and Muhammad Abdullah to face trial is not justified especially in the circumstances when on the same set of evidence the learned trial Court deem it appropriate to drop Mst. Khalida Bibi from proceedings to be instituted in private complaint. I shall also deem it necessary to point out here that in such like circumstances the Hon'ble Supreme Court of Pakistan has already held in the case of Zafar and others v. Umer Hayat and others (2010 SCMR 1816) as under:-- Procedure to be adopted and considerations to be kept in mind in dealing with complaint

Trial Court must scrutinize the contents of the complaint, nature of allegations made therein, supporting material in support of accusation, object intended to be achieved, possibility of victimization and harassment, if any, to ensure itself that no innocent person against whom allegations are levelled should suffer the ordeal of protracted, time consuming and cumbersome process of law.

7. Thus, from the discussion made above I am of the view that the impugned order dated 9-2-2012 is absolutely in apt with the facts and circumstances of this case to the extent of Mst. Khalida Bibi so the Criminal Revision No. 318 of 2012 is dismissed whereas the impugned order is not sustainable in the eyes of law to the extent of Amanat Ali and Muhammad Abdullah accused, therefore, Criminal Revision No.199 of 2012 is hereby accepted and the impugned order is set aside to the extent of summoning of above said accused to face a trial.

8. Before parting with this order it is, however, clarified that the observations made hereinabove are just tentative in nature and the same are strictly confined to the disposal of these revision petitions. The learned trial court shall decide the case on its own merits without being prejudice from the observations. HBT/M-165/L Order accordingly.