2007 PLP 3187 (YLR)

IJAZ AHMAD CHAUDHRY, J:-The petitioner has challenged the order dated, 14-10-2003 passed by the learned Addl. Sessions Judge, Layyah only to the extent of non-summoning of the respondent namely Abdul Rehman, Muhammad Afzal and Muhammad Hanif in a private complaint filed by the petitioner..

2. The brief facts of the case are that on 24-10-2002 at about 6-30 a.m. he along with his mother Mst.. Sadan alias Sabo Mai, brother Ashiq Hussain and other family members were present when suddenly the door of haveli was broken and it .fell down. Six persons entered into the haveli. Out of six, two persons were in police uniform, and one of them -was Riaz, -Sub Inspector who was previously known to the petitioner. The other person in the uniform was Muhammad Sadiq Constable, Sub Inspector was equipped with revolver. Without uniform persons were Muhammad Sharif, equipped with pistol, Abdul Rehman equipped with pistol and Muhammad Hanif equipped with Sota. Muhammad Afzal Constable was equipped with rifle. Riaz Hussain Sub Inspector was asked about brother of the complainant Sadiq Hussain. The complainant told him that Muhammad Sadiq had gone to Chak No.128/TDA. At this Riaz Hussain, Sub Inspector asked Muhammad Sadiq Constable to catch hold of the complainant who tried to run away to escape himself when Muhammad Sadiq Constable started beating the complainant with handle of the rifle which hit the complainant on left shoulder, right arm and on different parts of his body. Then mother of the petitioner received fire-arm .injury on her left wrist at the, hands of Abdur Rehman and fire made by Muhammad Afzal hit her on the left ear. Muhammad Hanif also inflicted sota blows on the chest and right hand of mother of the complainant. Then Ashiq Hussain, brother of the complainant received fire-arm injuries in the chest and left arm at the hands of Muhammad Sharif and Riaz S.-I. respectively who died at the spot. Earlier F.I.R. No.203/02 was registered with P.S. Saddar Layyah on 24-10-2002 but the complainant being not satisfied with the investigation has filed this private complaint and the impugned order has been pissed.

3. Learned counsel for the petitioner, contends that it was even specifically mentioned in the F.I.R. that Muhammad Hanif respondent No.3 while armed with sota remained present at the spot. It is also contended that though the name of 'Muhammad Afzal was not mentioned in the F.I.R. but it was specifically mentioned that the Constable in police uniform had fired hitting on the-left ear of the mother of the petitioner. It is next contended that Abdul Rehman was also specifically attributed a shot with the pistol on the left wrist of the deceased but in spite of that all the three respondents have not been' summoned on surmises and conjectures.

4. Learned counsel for the respondents on the other hand claims that the respondents were found innocent by the police during the investigation. It is also contended that the petitioner is not consistent regarding the role ascribed to the private respondents. It is also contended that the name of Afzal respondent is not mentioned in the F.I.R. whereas Hanif was attributed no injury in the F.I.R.

5. I have heard the learned counsel for the parties and also perused the impugned order and the documents attached with this petition. To the extent of respondent Abdul Rehman, the stand of the petitioner remained consistent in his statement under section 154, Cr.P.C. and then private complaint as well as the evidence recorded at the preliminary stage that he while armed with pistol had fired at the mother of the petitioner on the left wrist. Mere declaring of said respondent innocent by the police in the challan case is not a ground; for not summoning him as the tentative assessment of the evidence has to be made by the learned trial Court at the time of summoning of the accused in the private complaint. His case is at par with the case of the co-accused who have been summoned to race the trial through the impugned order. Hence to the extent of respondent No.1 this petition is accepted and he shall be summoned to face the trial. As far as the remaining respondents Muhammad Afzal and Muhammad Hanif are concerned, admittedly Muhammad Afzal was not named in the F.I.R. and only a person in police uniform was alleged to have fired at the deceased hitting near her left ear. Similarly Hanif though was allegedly to be armed with sota yet no injury was ascribed to him in the F.I.R. got recorded by the petitioner and he appears to have made improvement to the extent of involvement of both the respondents namely Afzal and Hanif in the private complaint which has been filed with a delay of about nine months. In such circumstances the learned Addl: Sessions Judge has rightly not summoned Afzal and Hanif to face the trial and impugned order to their extent being based on valid reasons does not suffer from any illegality which is maintained and this revision petition stands partly dismissed. N.H.Q./K-144/L Order accordingly.