2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned criminal revision application, applicants have impugned order dated 29.05.2015, passed by the Court of learned Ist Additional Sessions Judge, Sukkur, in Direct Complaint No.07 of 2015, Re-Mst. Imam Khatoon v. Attaullah and others, whereby learned trial Court brought the direct complaint on record and issued BWs against applicants.

2. Relevant facts spelt out from instant revision application are that respondent No.1 Mst. Imam Khatoon filed direct complaint alleging therein that her daughter Mst. Sardar Khatoon was married with Altaf Ahmed Siyal. On 01.04.2012, she went to visit the house of her son in law, situated at Chandia Colony, and on the same day, at about 5 p.m, accused Attaullah Gadani kidnapped her daughter Mst. Sardar Khatoon, upon which her husband Nadir Ali lodged FIR No.36 of 2012, under sections 365-B, 494, 359, P.P.C. at Police Station Mirpur Mathelo. Subsequently, Altaf Ahmed also presented suit for restitution of conjugal rights against Mst. Sardar Khatoon in Family Court, Mirpur Mathelo. Accused Ubedullah Gadani had filed before the High Court and concerned Magistrate disposed of the case of abduction under 'B'-Class. It is further alleged that respondent No.1 was in contact with Mst. Sardar Khatoon and on her request, her daughter agreed to meet her on 24.05.2012 in High Court Sukkur, and respondent No.1 came to the Court, but could not meet her, so respondent No.1 again called through Cellular Phone and asked her for meeting and Mst. Sardar Khatoon agreed to meet in Hotel Gateway at Ayub Gate, Sukkur. Respondent No.1 along with her son in law Altaf Ahmed and Saindad, went to the Gateway Hotel, and left Altaf Ahmed and Saindad outside at the entrance of the Hotel, and she went inside and met with Mst. Sardar Khatoon, and asked her to go out to meet with Altaf Ahmed and to inform him that she will not reside with him. Upon which, Attaullah Gadani became annoyed and said that why she had brought Altaf Ahmed and Saindad along with her. Mst. Sardar Khatoon replied him that there was no harm in meeting with Altaf, whereupon Attaullah became annoyed and declared her Kari. It is further alleged that respondent No.1 and Mst. Sardar Khatoon came out of the Hotel. At about 6.30 p.m, accused Attaullah, Ubedullah, Nasarullah and Rafique Ahmed having pistols,came out of the Hotel. On instigation of accused Mehmood Gadani, accused Attaullah and Ubedullah made straight pistols fires upon Mst. Sardar Khatoon, and she died on the spot. Accused Rafique and Nasrullah Gadani also made fires and accused Attaullah Gadani sustained injuries. All the accused fled away in two white Colour Cars. Many people gathered at the spot and shifted the dead-body of Mst. Sardar Khatoon. Subsequently, respondent No.1 filed petition in the High Court Sukkur Bench and after obtaining order, she lodged FIR No.124 of 2012, under sections 302, 311, 114, 148, 149, 471 and 496, P.P.C. at Police Station B-Section, Sukkur, against accused persons, which ultimately was disposed of under "B"-Class, hence instant direct complaint.

3. Learned counsel for applicants contended that impugned order dated 29.05.2015,passed by learned Magistrate is against the law and equity; that applicants are innocent and have been falsely implicated by respondent No.1 in order to put pressure upon applicants for withdrawal of murder case for the same incident pending before learned trial Court against her real son namely Muhkamuddin and her son-in-law; that applicant No.1 Attaullah had contracted his love marriage with Mst. Sardar Khatoon, and performed her Nikah according to Shariat-e-Mohammadi, upon which relatives of respondent No.1 became annoyed and lodged a false FIR for abduction against applicant No.1; that Mst. Sardar Khatoon recorded her statement under section 164, Cr.P.C. before Judicial Magistrate, Digri, whereby she had categorically denied the allegations of abduction by applicant No.1; that applicant No.1 and Mst. Sardar Khatoon also filed a petition before the High Court for providing legal protection and after attending this Court, when they reached near Ayub Gate, Sukkur, Mst. Sardar Khatoon was brutally murdered, while applicant No.1 Attaullah sustained bullet injuries by respondent party and such FIR was lodged by applicant Ubedullah and news was also published in various newspapers regarding said incident; that real culprits were arrested and crime weapons were recovered from their possession and separate cases were registered against them; that said accused persons filed their joint application for bail after arrest before learned trial Court and husband of respondent No.1 and other relatives sworn their no objection affidavits for granting bail, but their post-arrest bail application was rejected; that respondent No.1 also lodged a false FIR against applicants by managing a false story in order to spoil the main murder case and to save the skin of real culprits; that police investigated said case and recommended its disposal under "B"-Class which was approved by the Court of leaned II-Civil Judge and Judicial Magistrate, Sukkur; that husband of respondent No.1 had also lodged two false FIRs against the applicants and others in order to pressurize them for withdrawal of murder case, but applicants have been acquitted in said cases, by the Court of learned IV-Additional Sessions Judge, Mirpur Mathelo; that male members of respondent No.1 have been issuing serious threats to applicants to withdraw their case or compromise the issue with them, otherwise applicants would also face the same consequences; that respondent party is hiding behind the women folk, hence respondent No.1 has not come to the Court with clean hands by concealing the real facts and order dated 29.05.2015, is liable to be set-aside. Learned counsel relied on 2010 SCMR 105, 2010 SCMR 1816, 2015 MLD 1145 and 2001 SCMR 1738.

4. While controverting the above submissions, learned counsel for respondents has contended that applicants instead of facing their trial before the Court, have filed instant revision application with ulterior motives; that applicants have committed murder of Mst Sardar Khatoon and also caused injuries to the appellant No.1, and then filed a false case against respondent party; that FIR lodged by respondent No.1 was not properly investigated and was disposed of under "B"-Class, hence direct complaint has been filed against applicants; that learned Magistrate has passed a proper order and instant revision application is liable to dismissed.

5. Learned APG adopted the arguments of learned counsel for applicant and contended that learned Magistrate has not properly considered the relevant circumstances of the incident while passing the impugned order.

6. Heard arguments advanced by learned counsel for the parties and scanned the material available on record prudently.

7. Perusal of record emanates that applicant No.1 Attaullah Gadani and deceased Mst. Sardar Khatoon contracted their love marriage on 02.04.2012, against the consent of respondent party, and she being sui-jurishad sworn her affidavit of free-will on 02.04.2012 for contracting her marriage with her own accord. On the other hand, Nadir Ali, husband of respondent No.1, had lodged FIR No.36 of 2012, under sections 365, 494 and 395, P.P.C. against applicant Attaullah Gadani and others. Subsequently, Mst. Sardar Khatoon appeared before the learned Civil Judge and Judicial Magistrate Digri, and got recorded her statement under section 164, Cr.P.C. on 05.04.2012, whereby she had categorically stated that she being sui-juris and with her own sweet will, had contracted her love marriage with Attaullah Gadani, and neither she was abducted nor enticed by her husband Attaullah for their contracting their marriage. Applicant Ubedullah filed C.P No.936 of 2012, against FIR No.36 of 2014. Consequently, FIR No.36 of 2012 regarding abduction of Mst. Sardarwas disposed of under "B"-Class by learned II- Civil Judge and Judicial Magistrate, Sukkur.

8. Conversely, applicant Attullah Gadani and Mst. Sardar Khatoon filed Constitution Petition before the High Court Sukkur Bench against respondent party for providing protection. On 24.05.2012, spouse appeared in this Court and then on their return to their home at Hotel Gateway, in the heart of Sukkur City, respondent party committed brutal murder of Mst. Sardar Khatoon and she sustained 12 bullet injuries and expired at the spot, while application Attaullah Gadani sustained 9 bullet injuries. Applicant No.2 Ubedullah lodged FIR No.82 of 2012, under section 302, P.P.C. at PS B-Section, Sukkur against the incident and Muhkumuddin son of respondent No.1 and Altaf Ahmed Siyal were arrested by the police and crime weapons were also recovered and two separate FIRs Nos. 88 and 89 of 2012, were lodged at Police Station B-Section, Sukkur against them, and said murder case is still sub-judice before the Court of Ist Additional Sessions Judge, Sukkur.

9. Respondent No.1 approached this Court for lodgment of FIR and after obtaining order, she lodged FIR No.124 of 2012 at Police Station B-Section, Sukkur, against applicants by managing a false story in order to spoil the main murder case and to save the skin of real culprits regarding same incident but said FIR was disposed of under "B"-Class, so she filed instant direct complaint before the Court of learned Ist Additional Sessions Judge, Sukkur, and after recording statement of respondent No.1/complainant and her two witnesses, trial Court brought the complaint on record in a routine matter by a short order and issued process against the appellants. In the case of Mohammad Faiz Khan v. Ajmair Khan and another (2010 SCMR 105), the honourable Supreme Court has observed as follows:- "Object and scope of section 202, Cr.P.C. is two-fold to allow free and fair opportunity to complainant to produce some evidence make out grounds for issuing process against accused. It is the duty of Magistrate to scrutinize, material in support of accusation and object intended to be achieved, possibility of victimization and harassment, if any to ensure himself that no innocent person against whom all allegations are leveled should suffer ordeal of protracted, time consuming and cumbersome process of law". In the case of Mohammad Anwar Ujali and 4 others v. Asghar Ali (2015 MLD 1145), it was held as under:- "S. 200 - Penal Code (XLV of 1860), Ss. 452, 109, 302, 324 &34,House trespass after preparation for hurt, assault or wrongful restraint, abetment, qatl-i-amd, attempt to commit qatl-i-amd, common intention. Summoning of complainant in a private complaint by the respondent. Petitioner/complainant party got a case registered against accused persons for the murder of son of complainant. During investigation, cross version introduced by accused party did not succeed. Private complaint was filed by the respondent at a belated stage with delay of 18 months which was dismissed by the Trial Court, primarily holding that it was a malicious device by the respondent to frustrate the proceedings of murder case. Said order of the Trial Court was set aside by High Court in revisional jurisdiction, and case was remanded to the Trial Court for rehearing the argument of the respondent and rewiring of order in the complaint case. Trial Court, on remand of the case, summoned the petitioners. View taken earlier by the Trial Court, whereby private complaint filed by the respondent was dismissed, was not perverse or illegal and unlawful. After the acceptance of revision petition filed by the respondent, no material change was brought on record, or any further evidence was introduced by the respondent to strengthen its complaint case. Delay in filing the private complaint by the respondent, by itself was one of the major factors to notice the dubiousness or bona fide of the private complaint. Revision petition was allowed and impugned order, by which Trial Court summoned the petitioner, was set-aside, in circumstances." In the case of Mohammad Salim and 4 others v. Fazal Muhammad and another (2001 SCMR 1738), the honourable Supreme Court has observed as under:- "Ss. 302, 34, 148,

149. Criminal Procedure Code (V of 1898), Ss. 203 &

204. Case found fit for issuance of process by High Court. Trial Court after having received the enquiry report did not find any sufficient ground for proceeding and consequently dismissed the complaint. High Court, however, in exercise of its revisional jurisdiction set aside the said order directing the Trial Court to proceed with the complaint in accordance with law. Complainant undoubtedly had a right for redress of his grievance, but the same was subject to the condition that sufficient ground for issuance, of process was made out. Accused had already got registered the FIR regarding the occurrence and the complainant about 14 months thereafter had brought his counter-version through a private complaint. No sufficient ground was available for issuance of process against the accused in the complaint case. Impugned order passed by High Court was, therefore, not sustainable in law and the same was consequently set aside Appeal was allowed by Supreme Court accordingly." In the case of Zaffar and others v. Umar Hayat and others (2010 SCMR 1816), the honourable Supreme Court has observed as follows:- "Ss.202, 203 & 204 Procedure to be adopted and consideration to be kept in mind in dealing with complaint. Trial Court must scrutinize the contents of the complaint, nature of allegations made therein, supporting material in support of accusation, object intended to be achieved, possibility of victimization and harassment, if any, to ensure itself that no innocent person against whom allegations are leveled should suffer the ordeal of protracted, time consuming the cumbersome process of law." It was further observed by the honourable Apex Court as under:- "S.204, Cr.P.C. Accused summoned by Trial Court in complaint containing counter-version. Nominated accused in the FIR lodged more than seven months earlier under Ss.302, 148 and 149, P.P.C. had filed the private complaint with a counter version about the same incident and this fact was not considered by Trial Court at the time of issuing summons to the petitioners/respondents, which was countersigned by High Court without application of mind. Although no limitation is prescribed in criminal prosecution, yet the longer the complaint is delayed the lesser would become the chance of believing in its truth, particularly when the same was based entirely on oral evidence. No sufficient ground existed for issuance of process in the complaint case. Judgments of both the courts below were consequently set aside and the complaint filed by the respondent was dismissed accordingly by Supreme Court."

10. It is well settled that complainant is competent to file direct complaint for redressal of his grievances or any offence committed, but it is incumbent upon him to show prima facie adequate grounds for issuance of process to proposed accused. While taking cognizance of offence in direct complaint under section 204, Cr.P.C., it is prime duty of the Court to scrutinize the entire available material judiciously, to observe that whether case is prima facie made out or not, adjudge all the relevant facts pertaining to the narrated incident minutely, consider predominantly the object intended to be achieved, and possibility of victimization and harassment to the proposed accused. In absence of sufficient grounds and tangible evidence, the frivolous and vexatious complaints must be buried at their very inception to provide protection to the innocent persons from prolonged litigation. If complainant brings counter-version regarding the occurrence of an offence against which proposed accused had already registered the FIR against complainant or his relatives or associates, Court should adjudge and scan entire material prudently to notice the mala fide or bona fide of the private complaint. Indeed, there is no limitation for filing of direct complaint regarding commission of an offence, but the inordinate delay in filing of complaint creates serious doubts regarding the authenticity of truthiness of the allegations made in complainant which shall also minimize the possibility of conviction for the alleged offence. In present case, respondent No.1 filed criminal complaint against applicants at a belated stage with delay of 22 months which is a malicious maneuver with sole object to frustrate the proceedings of murder case lodged by applicants against the close relatives of respondent No.1 who are behind the bars, consequently, instant complaint is perverse, illegal and based purely on mala fide intention. Learned trial Court had ignored the fact of counter-version about the same incident narrated by respondent No.1 through instant direct complainant while issuing process to the applicants, has thus committed material illegality.

11. Bare perusal of impugned order reflects that learned trial Court did not examine the relevant facts and circumstances prudently, and seemed to be influenced from the story narrated by respondent No.1 and had ignored the background of the animosity and series of cases instituted by the parties because of the love marriage of applicant Attaullah Gadani and deceased Mst. Sardaran, against the consent and wishes of respondent party. Admittedly, incident occurred on 24.05.2012, while direct complaint has been filed on 21.03.2015, i.e. after the laps of about 22 months. The sole purpose of filing instant direct complaint is only to defeat and frustrate the trial of the murder case which is subjudice against the respondent party. Indeed, real son of respondent No.1 and other close relatives are behind bars and facing their trial for the murder of deceased Mst. Sardar Khatoon and causing bullet injuries to the applicant No.1, thus, mere allegations leveled by respondent No.1 in her complaint as counter-claimare based entirely on oral evidence and no sufficient ground existed for issuance of process/BWs against applicants in the direct complaint.

12. For the facts and circumstances discussed supra, I am of the considered view that learned trial Court has committed irregularity and serious infirmity while passing the impugned order which attracts interference of this Court. Consequently, instant criminal revision application stands allowed as prayed and impugned order dated 29.05.2015, passed by the Court of learned Ist Additional Sessions Judge, Sukkur, is set aside and direct complaint No.7 of 2015, Re-Mst. Imam Khatoon v. Attaullah and others, stands dismissed being devoid of any legal substance for taking cognizance against applicant for the alleged offence. These are the detailed reasons for the short order dated 15.01.2016, whereby instant criminal revision application was allowed. SL/A-72/Sindh Revision allowed.