P L D 1995 Lahore 30 (PLP)

Muhammad Nadeem through this writ petition has impugned the orders dated 9‑10‑1994 of Judicial Magistrate Se~tion 30, Lahore, respondent No.2 and order dated 12‑2‑1995 of the learned Additional Sessions Judge, Lahore.

2. The brief facts of the case are given as under:‑‑ "Case: F.I.R. No.559/9~ dated 21‑9‑1993 offence under section 302, 324/34, P.P.C was registered at P.S. Mughalpura. 'Lahore on the statement of Tahir Mahmood. In the F.I.R the complainant named Muhammad Umer, Muhammad Munir, Muhammao Tari1q, Muhammad Khalid and Muhammad Nadeem as accused. According to the prosecution the five accused came armed to the place of occurrence and committed the murder of Muhammad Aslam, complainant's father. Muhamm ad Tariq also received a fire‑arm injury. The complainant stated in the F.I.R. that he also fired ‑ pistol‑ shots in the exercise of his private defence. After investigation, the case was submitted in Court and now the trial of the accused is pending before a learned Additional Sessions Judge, Lahore."

3. Muhammad Nadeem was arrested and was in the judicial lock‑up. Petitioner filed private complaint through his counsel on 30‑3‑1994 under sections 324, 337/34, P.P.C against Muhammad Javid, Tahir Mahmood and Tanvir Aslam. In his statement he alleged that his maternal uncle Muhammad Umer and his brother Muhammad Aslam (deceased) had a dispute regarding Umer's house. Muhammad Aslant deceased wanted to purchase his. brother's house, but the price was not settled by Muhammad Umer. Muhammad Umer built a new house and sold his old one to Muhammad Hameed. On 21‑9‑1993 Muhammad Umer went to perform his duties in the Railways and asked Muhammad Nadeem to shift his goods from the old house to the new one. At 9‑00 a.m. he alongwith Muhammad Farooq and Muhammad Ahmad P.Ws visited the house for shifting the goods. Muhammad, Aslam (deceased) and his sons Tahir'Mahmood, Tanvir and Javid were present there, who obstructed Muhammad Nadeem and others from taking away the goods and threatened them with dire consequence. All the four were armed with fire‑arms and opened fire at Nadeem. Javed fired 222 rifle, hitting left thigh of Nadeem. while Tahir Mahmood fired his 222 rifle hitting and smashing left lower leg of Nadeem. The petitioner was holding a licensed rifle, which he fired at Muhammad Aslam in exercise of the right of his private defence. His condition was precarious. He fell down on the spot. He was taken to the General Hospital and was admitted. He came to know in the hospital that Muhammad Aslam succumbed ' to the injuries and police registered a case of murder against him and others. He gave statement to the local police/Investigating Officer, who promised to do justice in the case. Thereafter the investigation was conducted by D.S.P City, who recorded his evidence but did not take any action against the opposite‑party. The learned Magistrate also recorded the statements of Muhammad Farooq, Muhammad Ahmad and Muhammad Khalid, who materially corroborated the D.Ws. The medico‑legal report of Muhammad Nadeem was also exhibited as marked W. The learned Magistrate dismissed the complaint. The learned Magistrate inter alia noted that the complaint was filed after six months and no explanation was given. The doctor in the medico‑legal report kept the injuries under observations and the kind of weapon declared as may be fire‑arms. During these months, nobody cared to get the final result as well as kind of weapon used at the time of alleged occurrence. And that there was no corroboration between the statements of witnesses and the medico‑legal report. And that P.W. Muhammad Farooq stated that Arif alias Cheena Fajja and 2/4 women came to spot, were not cited as witnesses and that Muhammad Farooq is a relation of the complainant. It was further observed that P.W.3 Muhammad Ahmad had intermingled the situation, Lastly P.W.4 Muhammad Khalid was not an eye‑witness and whatever he stated was narrated to him by it shopkeeper, The learned Magistrate was of the opinion that there was no sufficient ground fOT proceeding. In the light of the foregoing reasons, therefore, the complaint was dismissed under section 203, Cr.P.C,

4. Petitioner filed revision against 'the impugned order under section 439‑A, Cr.P.C. In para. 2 of ‑the revision the petitioner submitted that he remained admitted in LahoreGeneral Hospital for more than two months, because two bones of his legs were smashed due to the fire‑arm injury. In para. 3, he submitted that he presented a complaint to the local police but the police remained in league with the opposite‑party and did not register cross‑ease against them. In para. 4 be submitted that he produced two eye witnesses in support of the statement before the Magistrate and Muhammad Khalid P.W.4 was produced regarding the motive. He applied for the summoning of Dr. Mazhar Mustafa from General Hospital but at the instance of learned Magistrate, certified copy of medico‑legal report marked 'A' was exhibited. The revision was dismissed by the learned Additional Sessions Judge inter alia on the grounds of delay in filing of the complaint and the complaint was not signed by the complainant. Learned Addl. Sessions Judge concentrated more on technical things than on the objective issues. The facts remain that at the time of the filing of the complaint, Muhammad Nadeem was in detention in jail. On his behalf, his counsel filed complaint and on an application he was summoned from jail. He came in an injured condition and his statement was recorded. It is to be noted that Addl. Sessions Judge concentrated more on technical grounds but did not advert himself to the basic issues involved i.e. a counter‑version to the incident. He produced medico‑legal report in support of his statement duly supported by two eye‑witnesses. The learned Judge did not care to read the complaint where the delay was reasonably explained. The learned Judge at the end remarked "it is admitted in the private complaint that the complainant fired a shot at Muhammad Aslam father of the respondent/accused, who died subsequently due to that injury though according to the complainant he had fired in his self‑defence. It appears that as counterblast to the case of murder against the complainant and others, this instant complaint was motivated." To the contrary Muhammad Nadeem has put up his counter‑version in the complaint and had stated that it was the opposite‑party, who resorted to brutal firing when petitioner and others intended to taking away the household goods.

5. It is an established principle that cases of counter‑version in the same occurrence are to be tried together and disposed of together. The counter-versions are to be assessed in juxtaposition by the same Court. The view taken by the learned Sessions Judge is absolutely unjustified and whimsical. The petitioner has now, come up in this Court in writ jurisdiction.

6. Learned counsel for the petitioner inter alia submitted that he was a subject of brutal attack by the opposite‑party, in which he suffered two fire‑arm injuries on his legs. The bones of his legs were smashed and he had to undergo operation for four times and he was still under treatment and waiting for some more operations. Under these circumstances, after a long detention he was granted bail by the Lahore High Court. Regarding the delay in filing the complaint, learned counsel submitted that he immediately lodged his report containing counter‑version to the local police. He had to rile W.P. No. 535 of 1993 in this Court for the' registration of his case. He attached copy of complaint and medical report. Mr. Justice Raja Afarsiab on 2‑11‑1993 disposed of the writ petition, by directing the Investigating Officer to record the version of the petitioner. His evidence was recorded by the D.S.P City but the opposite‑party were not arrested nor challaned. With the compound fracture and undergoing complicated operations, he remained in a bad condition in the General Hospital..‑ Thereafter 'he was sent to judicial lock‑up. He was, therefore, compelled to file private' complaint after six months. Learned counsel submitted that in the administration of criminal justice the technicalities, formalities and procedural impediments cannot retard its course. Learned counsel further submitted that at the stage of inquiry under section 202, Cr.P.C. the complainant is expected to. produce evidence which make a prima facie case for further inquiry or trial. Even the complainant s single statement supported by the medico‑legal report was‑sufficient for the summoning of the accused in the case. The production of three other witnesses was more than sufficient for the purposes of making a prima facie case, in a le case of counter‑version of both the parties who assert their right of private defence. The accused in the complaint case should have been summoned and forwarded to the learned Additional Sessions Judge seized of the police challan on the same subject. Learned counsel submitted that, there was no other alternative or adequate remedy available to the petitioner except invoking the extraordinary inherent and Constitutional jurisdiction of this Court.

7. The learned counsel further submitted that through the impugned orders the two Courts have rejected the petitioner's case on merits. The petitioner alongwith others are being tried in a murder case. Therefore expression of opinion in the said impugned orders has caused a great prejudice to them. 8. 1 have heard the learned counsel for the parties, the State and have perused the record. It is the case of both the parties that both of them were armed with fire‑arms and both the parties claimed to have fired in the exercise of the right of private defence. On the complainant side Muhammad Aslam succumbed to the injuries while from the accused side Muhammad Nadeem suffered two fire‑arm injuries on his leg one being a compound fracture. 'Being a case of counter‑version between the parties', the impugned orders were not justified in law and appropriate in the circumstances of the case. It is an established principle of law that cross‑cases containing counter‑versions of the same incident, between the same parties are to be tried by one Court. Evidence is to be adduced side by side and judgment to be announced by the Court simultaneously. The impugned orders have violated that principle.

9. The object of an inquiry under section 202 Cr.P.C is to ascertain the truth or falsity of the complainant. There is a difference between a primary inquiry and a full dress trial by a Court. A private complaint can be dismissed after holding a preliminary inquiry and if in the judgment of the Court, there is not sufficient ground for proceedings. The burden of proof in a preliminary inquiry under section 202, Cf.P.C. is lighter on complainant as compared to the burden of proof on the prosecution during the trial of an offence. There is a marked distinction as to the approach of appraisal of evidence at the time of holding a preliminary inquiry and at the regular hearing of a criminal case. At the former stage, a Magistrate or the Court is not expected to examine the evidence where as‑ the later stage, the Magistrate or the Court is required appraisal of the evidence thoroughly and to record its finding on the basis of such appraisal. It was so held in 1991 SCMR 1608 and PLD 1984 Lahore

323. Keeping in ‑view this criteria, I hold that there was sufficient evidence on the record in the complaint case for the summoning of the accused and holding of the trial against them.

10. The learned counsel for the respondent has relied on PLD 1981 SC 522 ‑ (Abdul Rehman Bajwa v. Sultan and others). The learned counsel submitted that the Magistrate under his jurisdiction and the learned Additional Sessions Judge exercising revisional powers, dismissed the plea of the petitioner. Therefore, the High Court in the exercise of Constitutional powers under Article 199 cannot interfere and set aside the impugned orders. It is interesting to note that in similar circumstances in the above‑noted case, a Magistrate acquitted the accused in a Challan case while in the private complaint based on counter‑version was still pending before another Magistrate. In revision the learned sessions Judge on the principles of counter versions in cross‑cases, in the same incident between the same. parties, set aside the order of acquittal. Learned Judge remanded the case for retrial by the same Magistrate, where the complaint of the opposite‑party was pending with a direction that both the cases be tried together. The accused being aggrieved by the order of the Sessions Judge, filed writ petition in the High Court for the quashment of the said order. The learned Judge of the High Court heard the writ petition at length, considered the facts of the case and evidence and accepted the‑ writ petition, declaring that the order of remand by learned Sessions Judge was without lawful authority. The opposite‑party went in appeal before the Supreme Court. The learned Judges of the Supreme Court upheld the findings of the Sessions Judge on the principle that cross cases of the same parties are to be tried by the same Court. Therefore, the Supreme Court held that the interference by the High Court in the matter was not called for. In PLD 1987, SC 447 (Utility. Store Corporation v. Punjab Labour Tribunal) while considering the rule laid down in PLD 1974 SC 139 and 1974 SCMR 530, wherein it was observed that the Tribunal or Court has the jurisdiction to decide a particular matter rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. After considering these cases, the learned Judges ruled it is not right to say that the Tribunal which is invested with the jurisdiction to‑ decide a particular matter, has the jurisdiction to decide it rightly or wrongly. Because the condition of the grant of jurisdiction is that it should decide the matter in accordance with law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it, because the Tribunal has the jurisdiction decide to' rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter, it goes outside its jurisdiction and, therefore, determination of a Tribunal which is shown to be erroneous on a point of law can be quashed under writ jurisdiction on the ground that it is in excess of the jurisdiction". In view of the rule laid down by the Supreme Court, I hold that both the Courts committed an error of law in deciding the matter and therefore, went outside their jurisdiction conferred on them. Resultantly this Court in the exercise of the Constitutional and inherent powers is duty bound to interfere and declare that the impugned orders were illegal. To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. In exercise of its Constitutional jurisdiction this Court will immediately come to the rescue of a citizen and direct that the concerned authorities, Tribunal or Court, shall perform its legal obligation in the matter. The right to have fair and proper trial is invaluable right of every citizen. The present case is an example in which the petitioner is being deprived of his right and the impugned orders passed are therefore, in violation, of the said principles and are therefore declared illegal and of no legal effect. The two impugned orders are set aside. The complaint is restored to the Court of Illaqa Magistrate as discussed above. There is sufficient and prima facie evidence in the complaint case for summoning of the accused and proceeding further, in accordance with law. This writ petition is accepted with no orders as to costs.

11. The petitioner may move this Court for the transfer of the complaint case before the same Court seized of the murder case in view of the rule laid down in 1986 PCr.]LJ 989, PLD 1981 SC 522 and PLD 1966 SC 708 (Noor Illahi's case).

12. The writ ‑petition is accordingly disposed of. N.H.Q./M‑2616/L Petition accepted,