2002 P Cr (PLP)

2. In order to understand and appreciate the background of this writ petition it appears necessary to briefly narrate the facts of this case F.I.R. No.98 of 1989 was registered at Police Station Township, Lahore on 25‑5‑1989 on the statement of Muhammad Javed son of Muhammad Sultan (P.W.7) relating to the murder of his brother Amjad Ali against Muhammad Iqbal, Gunman, Faqir Hussain, Sales Manager, Muhammad Shoib partner of Umer Filling Station and unknown persons. After various investigations the police came to the conclusion that Amjad All deceased had been killed by Muhammad Iqbal, Gunman and the remaining accused were innocent. Accordingly the challan was submitted in the trial Court under section 302, P.P.C. against Muhammad Iqbal, Gunman.

3. The case was tried by the learned Additional Sessions Judge, Lahore who vide his judgment, dated 14‑10‑1991 convicted Muhammad Iqbal under section 302, P.P.C. for the murder of Amjad Ali and sentenced him to death with a fine of Rs.50,000 or 5 years' R.I. in default. Out of the fine, if recovered, Rs.40,000 were ordered to be paid to the legal heirs of the deceased.

4. After signing the judgment, the learned Judge appended a note on the back page whereby he directed the S.H.O., Township to submit a challan against Muhammad Shoib with intimation to this Court.

5. Muhammad Shoib, the petitioner has now assailed the validity of the order through this writ petition on various grounds. It is submitted that if the learned Judge was of the view that the petitioner was not innocent (as held by the police) he was at liberty to summon him to face trial. This having not been done, he had no mandate in law to pass a direction of the nature passed in this case after the signing of the judgment.

6. Muhammad Javed, brother of Amjad Ali deceased had filed an application for being impleaded as a party to this writ petition being complainant in the main case. This was allowed. The respondents have vigorously defended the impugned order contending inter alia that this warms as direction of competent Court of law and the police was bound to act upon it.

7. Arguments have been heard and the record has been perused with the assistance of the learned counsel for the parties.

8. This is a case of its own peculiar nature. There being more tan one investigations in this case and there was almost consensus among the various Investigating Officers that only Iqbal was guilty and had rightly been challaned and prosecuted. As far the claim of the complainant that murder had taken place at the instance of Shoib, his version was not believed by the Investigating Officers. There is no provision of law sanctioning the course of action adopted by the learned trial Court. After announcing the judgment the learned Judge had obviously, become functus officio. If he was convinced, after considering the material on record that Shoib was involved in the murder, he could have summoned him to face the trial alongwith others. Since he could not adopt this course, the complainant was free to file a complaint against Shoib. This would have been tried by the same Court. Since neither of the courses pointed out was adopted, the Court had no jurisdiction to issue the direction in the fashion it has been done in this case.

9. There is yet another aspect of the case. The view of the learned trial Judge has been negatived by the Appellate Court. The learned trial Court was of the view that there is overwhelming evidence against Muhammad Shoib which merited his prosecution. The learned Division Bench on the other hand while perusing and examining the prosecution evidence qua Muhammad Shoib, owner of the Patrol Pump observed:‑‑ "Presence of owner of Patrol Pump at the scene of occurrence at 5‑00 a.m. is highly improbable."

10. In this way the view of the learned trial Judge about the presence and involvement of Shoib stands rejected by the High Court. As such there appeared to be no valid ground for passing the order for prosecution of Shoib.

11. As referred to earlier, the complainant in such an eventuality was at liberty to file a complaint against. Shoib and if at that stage this course was not adopted by the complainant and if he still believes that involvement of Shoib was certain, he could even now file a complaint for there is no limitation in criminal cases. The outcome of the above discussion is that the impugned order is without jurisdiction and is hereby set aside. Consequently, the writ petition is accepted in above terms. N.H.Q./M‑1054/L Petition accepted.