1986 PLP 1194 (MLD)

‑‑‑Ss.435 & 439‑‑Penal Code (XLV of 1860), Ss.452 & 302/148/149‑ Retrial of case objected on ground of inordinate delay of 16/17 years in disposal of revision against acquittal‑‑Complainant, was never at fault and delay in disposal of revision had not been occasioned by his act or omission‑‑Complaint, should not be dropped because of passage of time‑‑Retrial ordered. N.A. Shami for Petitioner. Naeem Shakir for Acquitted‑Accused. Shahnawaz Khan for the State. Date of hearing: 15th February 1986. The facts giving rise to this Criminal Revision, briefly, are that Mst. Rabia petitioner filed complaint under section 452/302/148/149, P.P.C. against J.Samual, the then A.S. I., P.S. Saddar, ranwala and 10 others, respondents Nos. l to 11 in the Court of S. D.M., Wazirabad on the allegations that they variously armed criminally trespassed into her house and murdered her son Muhammad Ashraf. Mst. Rabia was examined by the learned S.D.M. She produced two witnesses in the preliminary inquiry. The S.D.M. dismissed the complaint on 2‑10‑1967. She filed revision against this order before the learned Sessions Judge; Gujranwala under section 435, Cr.P.C. who vide order, dated 5‑3‑1968 set aside the order of the dismissal of the complaint and remanded the case under section 436, Cr.P.C. to the S.D.M. for further inquiry in the light of directions given therein. On remand the learned S.D.M. summoned the accused/ respondents Nos. 1 to

11. When they entered appearance, the learned S.D.M., vide order, dated 24‑10‑1968 again dismissed the complaint and discharged the accused /respondents on the ground that sanction for the prosecution of the public servant accused, was not obtained and that in the inquiry held under section 176, Cr.P.C., the Magistrate concerned had exonerated the police i.e. respondents Nos. 1 to 5 holding that they had acted in discharge of their lawful duty. The learned S.D.M. was of the view that the second inquiry before him in pursuance to the complaint could not be held. Feeling aggrieved the petitioner filed revision under section 435, Cr.P . C . , which was dismissed on 26‑11‑1969 by Additional Sessions Judge, Gujranwala on the ground that since the police officials involved in the case had acted in discharge of their duties, therefore, sanction of the Government was prerequisite and the complaint could not proceed. Mst. Rabia petitioner then filed revision under section 439, Cr.T.C. on 2‑2‑1970 i.e. before Law Reforms Ordinance, 1972 came into force.

2. Learned counsel for the petitioner contended that the Police officials had murdered the son of the petitioner mala fide and it was no part of their duty to commit criminal house trespass after having armed themselves with deadly weapons and kill the deceased in his house that no finality was attached to the order passed in inquiry held under section 176, Cr.P.C. and the order passed therein could not be a ground for the dismissal of the complaint. Conversely, the learned counsel for the respondents other than Aziz‑ud‑Din respondent No.5 (since dead) has supported the orders of the S.D.M. and the learned Additional Sessions Judge. In the alternate he suggested that the case should not be remanded for re‑trial of the respondents after 16/17 years of the impugned order.

3. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. I find that in the complaint, the allegations against respondents Nos.1 to 11 were that they criminally entered into the house of the petitioner after having armed themselves with deadly weapons and murdered the son of the petitioner without legal and factual justification; that the police had .not obtained warrant for the search of the house of the petitioner; that respondents Nos. 1 to 5 had not complied with the mandatory provisions of section 165‑A, Cr.P.C,; that the trespass into the house of the petitioner without complying with the provisions of section 165‑A, Cr.P.C. was a criminal act; that the act of respondents does not appear to be bona fide; that prima facie the respondent had no right of self‑defence; the right of self‑defence rather accrued to the occupants of the house; that ,the complaint was remanded to the S.D.M. and he without recording the evidence of the prosecution witnesses .in the presence of the accused/ respondents discharged them on the grounds stated in his judgment; that the inquiry under section 176, Cr.P.C. was no bar to proceeding in the complaint before a Court of competent jurisdiction; that th conclusion arrived at in proceedings under section 176, Cr.P.C. does not restrain the committing Court from proceedings with the complain because the order passed therein does not amount to acquittal and that in any case it was for the S.D.M. or the learned Sessions Judge to determine as to whether the police, in the circumstances of the case, could kill the deceased in exercise of the right of self‑defence or not. Furthermore, it was yet to be decided by the S.D.M. himself on the strength of evidence produced before him as to whether respondents Nos. 1 to 5 had acted bona fide in discharge of their duties or not. For all these reasons I am convinced that the learned S.D.M. had dismissed the complaint and discharged the accused of the charges, arbitrarily and illegally. As for the suggestion that the case may not be remanded for re‑trial because of inordinate delay in disposal of this revision, I find that the complainant /petitioner was never at fault and delay in disposal of this revision has not been occasioned by his act of omission. The impugned order was passed on 26‑11‑1969. Mst. Rabi petitioner filed revision against this order on 2‑2‑1970. The case was put up before the Court on 6‑2‑1970 when the record was sent for. The case was again listed on 18‑12‑ 1970 and it was adjourned to next week. Unfortunately, despite specific order for the fixation of the case in the next week, the office did not put up the case for 10 years. The case was placed before the Court on 16‑11‑1980 when the notice was issued to the respondents. The service on the respondents could not be completed till 16‑12‑1981. The case was adjourned to 17‑1‑1982 for arguments as to whether after coming into force the Law Reforms Ordinance, 1972, the notice could be issued to the respondents under section 939, Cr.P.C. or not. It was on. 8‑7‑1982 that this Court decided that the notice could be issued because the impugned orders were passed before Law Reforms Ordinance, 1972 came into force. Thereafter, the case was adjourned from time to time. In these circumstances, I am of the view that it would be in the interest of justice that the complain is proceeded with and should not be dropped because of the passage of time.

4. For what has been said above, the revision is accepted. The order of the dismissal of the complaint and discharge of respondents Nos. 1 to 11 is set aside and the complaint is sent to Assistant Commissioner, Wazirabad. He shall summon the accused /respondents other than Aziz‑ud‑Din respondent No.5 and decide the question of sending up the complaint to the Court of Sessions within three months, under intimation to the Registrar of this Court. In case the respondents avoid service, the learned A. C. shall take coercive measures for procuring their attendance. H . A . K . Retrial ordered.