2003 P Cr (PLP)

Abdul Aziz Niazi for Respondents. Muhammad Qasim Khan, A.A.-G. Date of hearing: 2nd April, 2003. Through this criminal revision. order dated 2-11-2001 passed by the learned Additional Sessions Judge, Khanewal has been challenged, by which, the complaint lodged by the petitioner has been dismissed.

2. The brief facts of the case are that F.I.R. No.299 of 1994, dated 8-8-1994 was registered at Police Station Jahanian, District Khanewal on the statement of Muhammad Aslam under sections 302/324/337-A(ii)/148/149, P.P.C. with the allegations of committing Qatl-i-Amd of Muhammad Boota and causing the injuries to others against the petitioner party, who also received injuries in the same occurrence and a cross version was recorded against the respondents during the investigation of the abovesaid case by the police on 4-5-1994. The investigation remained pending for more than about 2/3 years and finally the cross-version having been declared incorrect, the challan was submitted against the petitioner party and charge was framed against them. The petitioner also filed a private complaint for the same incident wherein the statement of the petitioner was recorded as complainant and matter was referred to learned Judicial Magistrate 1st-Class for inquiry under section 202, Cr.P.C. After the receipt of the inquiry report, the impugned order has been passed, whereby, the private complaint for cross-version filed by the petitioner has been dismissed.

3. Learned counsel for the petitioner contends that the learned Additional Sessions Judge has dismissed the private complaint on the ground that during the investigation the version of the petitioner was found incorrect by different police officers, that the opinion of the police is not binding on the Courts having no evidentiary value;. that the delay of seven years in filing the private complaint is self-explained as the occurrence took place on 8-8-1994 and the petitioner and his co-accused were nominated in the F.I.R. of a murder case, who immediately after their arrest on 4-9-1994 got lodged their cross-version before the police which after having remained pending under investigation for a long period was cancelled and when the challan was submitted in the Court and the petitioner party summoned to face the trial, the private complaint was filed immediately after the framing of the charge as some time was consumed in the collection of documents, hence, the delay was not fatal; that the learned Additional Sessions Judge has dismissed the private complaint while discussing the deeper merits of the case while in the private complaint case when the matter is brought before the Court for the summoning of the accused tentative assessment of the evidence is to be made only; that the impugned judgment if is not set aside, it will prejudice the defence of the petitioner party in the murder case pending trial against them and both the private complaint and the challan case may be allowed to be decided together by the same Court to avoid the conflicting judgments.

4. On the other hand, learned counsel for the private respondents has opposed this criminal revision on the ground that the order has been passed after detailed discussion and is sustainable under the law.

5. Learned A.A.-G. appearing on behalf of the State also opposes this petition on the ground that, the complaint was filed with an inordinate delay and has rightly been dismissed.

6. I have heard the learned counsel for all the parties at some length and perused the record. The learned trial Court has given much importance to the opinion of the police regarding rejection of the cross version of the petitioner and has not taken into consideration the injuries received by the petitioner party. Annexure 'H' of this petition is the medico-legal-report of the petitioner which shows that the petitioner received eleven injuries out of which injuries Nos.2, 5, 7, 9 and 10 were kept under observation. Injury No.3 was caused by fire-arm which is on the right end of nosel tip and the other injuries are also on the vital part of the body. Similarly Ayyub Khan the brother of the petitioner also received twelve injuries as mentioned in Annexure 'J' out of which injury No.2 on the left side of the lower lip was caused with sharp-edged weapon and the other injuries are also on the vital parts of the body.

7. It is well established law that the opinion of the police is not p binding on the Courts having got no evidentiary value and cannot be, made basis for the dismissal of the private complaint. Similarly, the delay in lodging the private complaint cannot be held fatal in the facts and circumstances of the present case as the cross version was recorded on 4-9-1994 lust 26 days after the occurrence while the injured witnesses were examined on the day of occurrence by the doctor i.e. 8-8-1994.

8. The learned Additional Sessions Judge has exceeded his jurisdiction while deeply discussing the merits of the case which can also affect the case of the petitioner and his co-accused who are facing the trial in the murder case. There is no cavil to the preposition that at the time of summoning of the accused in a private complaint only tentative assessment of the evidence has to be made and if prima facie case is made out, the accused can be summoned. From the perusal of evidence produced in the private complaint prima facie case is made out against the respondents necessitating issuance of process against them to face the trial. Hence, this revision petition is accepted; the impugned order is set aside and the private complaint is remanded back to the learned trial Court for its disposal in accordance with law after issuing process to the respondents to face the trial.

9. It is, however, clarified that the trial which has already commenced in the challan case pending against the petitioner party will not be affected and delayed due to the pendency of the private complaint. However, the private complaint and the challan case shall be decided on the same day. It is also clarified that the observations made in this order are only of tentative assessment and will not affect the merits of the case of either party at the trial and final decision. H.B.T./M-1879/L Revision accepted.