2010 PLP 1911 (YLR)

ASIF SAEED KHAN KHOSA, J.--The petitioner is an accused person in case F.I.R. No.85 registered at Police Station Sadar, Mandi Bahauddin on 16-2-2007 in respect of an offence under section 302, P.P.C. read with section 34, P.P.C. which case is presently being tried by the learned Additional Sessions Judge, Mandi Bahauddin. During the trial statements of a few prosecution witnesses have already been recorded. On 04-10-2007 a charge was framed against the petitioner for an offence under section 302, P.P.C. read with section 34, P.P.C. After about two years of framing of the charge the petitioner submitted an application under section 227, Cr.P.C. before the learned trial Court on 26-8-2009 seeking amendment of the charge and praying that after deletion of section 302, P.P.C. the same should be substituted by some appropriate provision like sections 318,321 or 322, P.P.C. That application submitted by the petitioner was, however, dismissed by the learned Additional Sessions Judge, Mandi Bahauddin vide order dated 7-10-2009 which order has been assailed by the petitioner before this Court through the present revision petition.

2. It has been argued by the learned counsel for the petitioner that the F.I.R. in this case had been lodged with a delay of about one month; initially one Ghulam Farid, a brother of Bashir Ahmad deceased, had got recorded a rapat at the local Police Station maintaining therein that his brother had received a stray shot fired during the celebrations of a wedding and, thus, his death was accidental; in its order dated 8-9-2009 passed in Criminal Miscellaneous No. 10705-B of 2009 this Court had made an observation that a possibility regarding the death of the deceased being accidental could not safely be ruled out of consideration; and the circumstances of this case clearly indicate that the deceased had died because of an accident and not as a result of an intentional fire at him. It has, thus, been maintained by the learned counsel for the petitioner that the learned Additional Sessions Judge, Mandi Bahauddin was not justified in dismissing the above mentioned application of the petitioner seeking amendment of the charge.

3. After hearing the learned counsel for the petitioner and going through the documents appended with this revision petition it has been observed by me that in the F.I.R. as well as in the statements made by the eye-witnesses under section 161, Cr.P.C. it had categorically been asserted that the petitioner had nourished a grudge against Bashir Ahmad deceased and in the garb of aerial firing during a wedding ceremony he had deliberately and purposely targeted Bashir Ahmad deceased and had found an opportunity to kill him through a straight shot fired at him. As a result of the investigation even the local police had felt convinced regarding the murder in issue being intentional and, thus, in the report submitted under section 173, Cr.P.C. the petitioner had been opined to be guilty of an offence under section 302, P.P.C. The charge in this case in respect of an offence under section 302, P.P.C. had been framed by the learned trial Court on 4-10-2007 and the petitioner had chosen to file his application under section 227, Cr.P.C. seeking amendment of the charge after about two years of framing of the charge and commencement of the trial. It is, thus, quite obvious that the petitioner's bid to get the charge amended was nothing but an afterthought on his part.

4. It is true that in its order dated 8-9-2009 passed in Criminal Miscellaneous No.10705-B of 2009 this Court had made an observation about a possibility regarding accidental killing of the deceased in aerial firing during a wedding ceremony but that observation was confined only to a possibility which was considered relevant for the purposes of bail of the petitioner. It is settled law that an observation made by a Court in an order passed in the matter of bail is always to be treated as tentative in nature and the same has no bearing upon the trial of the case.

5. As regards the rapat lodged by Ghulam Farid, a brother of Bashir Ahmad deceased, with the local police regarding accidental death of his brother suffice it to observe for the present purposes that the said Ghulam Farid had never come forward to make any statement under section 161, Cr.P.C. before the Investigating Officer and his name also does not figure in the Calendar of Witnesses submitted with the challan. It is also pertinent to mention here that the father of Bashir Ahmad deceased had lodged the F.I.R. in this case and in the P.I.R. he had specifically alleged that the murder in issue was intentional and deliberate on the part of the present petitioner and, thus, nothing turns at this stage on the rapat statedly lodged by Ghulam Farid.

6. It appears that the purpose of filing an application by the petitioner under section 227, Cr.P.C. was to get a finding from the Court that the murder in issue was not intentional and deliberate and the same was merely accidental. I am afraid no Court would be ready to hand down such a conclusive finding at such a premature stage of the present criminal case because the evidence of the prosecution is still being recorded. It is needless to mention that the question of intention of an accused person is necessarily a factual matter which can be determined only on the basis of the evidence to be produced before the Court and in the present case evidence is still being produced before the learned trial Court and, thus, no finding can be given regarding such an aspect at such a premature stage.

7. The impugned order passed by the learned Additional Sessions Judge, Mandi Bahaduddin has been found by me to be a speaking order containing reasons for passage of the same and after going through the said reasons I have not been able to take any legitimate exception to the same. This revision petition is, therefore, dismissed in limine. H.B.T./T-16/L????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.