2007 PLP 2946 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This Constitutional petition is directed against the impugned order dated 12-3-2007 passed by the learned Judicial Magistrate Sheikhupura, whereby, respondent No.3 (Shahbaz son of Muhammad Ashiq) and respondent No.4 (Tariq Mehmood son of Muhammad Ashiq), were discharged from the case vide F.I.R. No.192/07 dated 22-2-2007 under sections 302/324/148/149/109 P.P.C., Police Station Saddar Sheikhupura registered, on the statement of petitioner/complainant Muhammad Arif.

2. Learned counsel for the petitioner, in support- of this petition, contends that specific injury is attributed to respondent No.4 (Tariq Mehmood son of Muhammad Ashiq) on the person of Akhtar injured P.W. on his head while respondent No.3 (Shahbaz son of Muhammad Ashiq) made indiscriminate firing at the spot; that the police with mala fide intention had declared both the respondents. i.e. respondent No.3 (Shahbaz' son of Muhammad Ashiq) and respondent No:4 (Tariq Mehmood son of Muhammad Ashiq) innocent along with one Maqsood co-accused, prepared a discharge report, submitted before the learned .Judicial Magistrate, who, vide impugned order dated 12-3-2007,. discharged respondents Nos.3 and 4 while did not agree qua Maqsood Ahmad who was attributed injury on the person of the deceased; that the learned Magistrate had no power to discharge both the respondents as they committed a heinous offence of double murder including injuries to the injured-P.Ws. In support of the above submissions, learned counsel for the petitioner has relied on the precedent case law reported in 1994 PCr.LJ 842, 1991 MLD 523, 1997 SCMR 1603,1996 PCr.LJ 1187 and 2000 PCr.LJ 43. 2-A. On the other hand, learned counsel for the respondent i.e. respondent No.3 (Shahbaz son of Muhammad Ashiq) and respondent No.4 (Tariq Mehmood son of Muhammad Ashiq) submits that during the course of investigation, many persons had appeared before the police in support of plea of innocence of the present respondents and the police, after having come to the conclusion, that they were not present at the spot, verified their said plea of alibi/innocence, declared them innocent, produced them along with co-accused Maqsood before the learned Judicial Magistrate and also submitted discharge report and that it was through a speaking order that both the respondents i.e. respondent No.3 (Shahbaz son of Muhammad Ashiq) and respondent No.4 (Tariq Mehmood son of Muhammad Ashiq) were discharged from the case while the learned Magistrate did not agree qua co-accused Maqsood. He further submits that qua the injury attributed to respondent No.4 (Tariq Mehmood son of Muhammad Ashiq) on the person of Akhtar P. W. no X-ray report has so far been received. Contended that when the impugned order of discharge was passed, till then, challan against the respondents and 'their co-accused had not yet been submitted, so, the learned Judicial Magistrate was legally justified to discharge the respondents from the case in question through the impugned order which is a well reasoned and speaking order.

3. The learned Additional Advocate General Punjab Ch. Muhammad Hanif Khatana

4. I have heard learned counsel for the respective parties, have given anxious consideration to their submissions coupled with perusal of precedent case law cited at the bar by the learned counsel for the petitioner and the learned Additional Advocate General Punjab Ch. Muhammad Hanif Khatana. To reach at a just decision of the case, it is imperative to give relevant facts of the case. The case in hand was registered on 22-2-2007 on the statement of petitioner/complainant Muhammad Arif in which two persons, namely, Mubarak Ali and Maqsood Akhtar had lost their lives while Muhammad Akhtar son of Waris, Tariq Mehmood and Rashad Mehmood received injuries. In all nine accused persons were named and two were mentioned as unknown. Till today, seven accused were arrested, namely, Khalil Javed, Shahadat, Shaukat, Maqsood, Malik, Tariq and Shahbaz amongst whom Tariq and Shahbaz respondents Nos.3 and 4 were discharged by the learned Judicial Magistrate vide the impugned order while he did not agree qua co-accused Maqsood while three accused persons, namely, Sajid, Javed and Ashiq were declared innocent and were not arrested by the police during the course of investigation. As far as passage of impugned order of discharge passed by the learned Judicial Magistrate is concerned, reasoning have been given qua discharge of respondent No.3 (Shahbaz son of Muhammad. Ashiq) and respondent No.4 (Tariq Mehmood son of Muhammad Ashiq) while he did not agree with the opinion of the police regarding co-accused Maqsood who had caused injury on the person of the deceased and in my view he has rightly refused to 'discharge with the discharge report qua the said accused Maqsood. Respondent No.3 (Shahbaz son of Muhammad Ashiq) is neither attributed any injury on the person of the deceased nor the injured-P.Ws. As tar as case of respondent No.4 (Tariq Mehmood son of Muhammad Ashiq) is concerned, he was attributed an injury on the head of Akhtar P.W. with a firearm but; surprisingly, till today no offence, has been mentioned for the said injury nor the X-Ray report has been taken by the police so far. Both the respondents have produced. their witnesses during the course of investigation in support of their .plea of alibi which was verified by the two Investigating Officers, whereafter, they were declared innocent, discharge report was prepared, submitted and they were accordingly discharged by the learned Judicial Magistrate vide impugned order which is speaking and legal order. I have gone through the precedent case law cited by the learned Additional Advocate General Punjab Ch. Muhammad Hanif Khatana reported in, Awal Khan v. The Superintendent of Police Attock and 13 others (1989 PCr.LJ 909), which has rightly been relied upon in which it has been held that the learned Magistrate is competent to discharge the accused persons involved in an offence which is exclusively triable by a learned Court of Session while the judgments cited by the learned counsel for the petitioner are distinguishable and are not applicable in the facts and circumstances of this case. Moreover, the petitioner/complainant Muhammad. Arif has got alternate remedy to file a private complaint against those accused persons who have either been declared innocent or discharged. The nutshell of the above discussion is that this petition has no merit which is accordingly dismissed. H.B.T./M-404/L Petition dismissed.