2003 P Cr (PLP)

Malik Muhammad Aslam for Petitioners. Respondent No.2 in person. Muhammad Sharif Janjua for the State. Date of hearing: 18th September, 2002. In case F.I.R. No.565. of 1999 of Police Station Burewala lodged by Abdul Ghaffar son of Noor Ahmad against Abdul Rashid and others under sections 302/325, Pakistan Penal Code read with section 11. of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Complete challan was put in Court against Muhammad Hanif son of Abdur Rehman. Abdul Ghaffar on 13-5-2002 filed a complaint against the petitioners that Muhammad Hanif after abducting Mst. Safia Bibi had kept her at the Dera of the accused/petitioners and all of them subjected her to Zina-bil-Jabr. On the secret information received of whereabout of the abductee he informed the Investigating Officer and took him to Farid Kot Chishtian but failed to recover Mst. Safia Bibi and Muhammad Hanif and, however, Shaikh Muhammad Rafique, Lumberdar and Irshad met them and promised that they would produce the accused within two days. Thereafter, on 11-9-1999 ,he alongwith Ishrat Ali son of Nazir Ahmad Bhatti and Rana Sana Ullah visited the Dera of Sh. Muhammad Rafique at Tibba Farid Kot and asked to sit and take lunch and in the meantime they would also serve meal to Mst. Safia Bibi and Muhammad Hanif whereafter they would take both of them. He and his companions refused to take meal. Muhammad Rafique and Muhammad Irshad asked Muhammad Hanif and Mst. Safia Bibi to take their meal. Muhammad Hanif and Mst. Safia Bibi. both took their meal served by Muhammad Rafique and Muhammad Irshad. After taking meal both of them complained of headache. Muhammad Irshad then brought some tablets from his house and gave the same to Muhammad Hanif and Mst. Safia which they took. When they left the place both of them were not feeling well, when they reached the Police Station Burewala both the accused started vomiting, they were therefore, taken to T.H.Q. Hospital, Burewala. Mst. Safia Bibi died at the hospital while Muhammad Hanif was admitted in the hospital who survived. He charged Muhammad Rafique Lumberdar, Asif, Iqbal and Muhammad Irshad, his sons, and Shabbir son of Muhammad Hanif for having administering poison to Mst. Safia Bibi and Muhammad Hanif which resulted in the death of Mst. Safia Bibi. In the complaint filed he alleged that the local police without any cogent reasons did not array those persons as accused in the challan even they were not shown in column No.2 of the challan when the challan was put in Court. He prayed that the accused be summoned, tried and case decided on merits as there was sufficient evidence against all of them.

2. The learned trial Judge on receipt of the complaint treating it as an application for summoning of co-accused/petitioners, summoned the petitioners vide order dated 13-5-2002, for 22-5-2002, which order is impugned in this revision petition.

3. I have heard the learned counsel for the petitioners, the learned counsel for the State and the complainant in person and perused the record.

4. From the perusal of the record it appears that the learned trial Judge did not apply his mind to the contents of the application which is a complaint and should have been treated as such and not simply an application for summoning the petitioners. The contention of the learned counsel for the petitioners that the procedure adopted by the learned trial Court is unwarranted under the law, is not controverted by the learned counsel for the State and it was argued that on the perusal of the application made by Abdul Ghaffar it is undoubtedly a complaint therefore, further proceedings should have been taken as provided under Chapter XVI in sections 200 to 204, Criminal Procedure Code. The cognizance could be taken by a Sessions Judge, therefore; he was required to follow the procedure provided therefor. The present case is covered by the dictum laid down in Nur Elahi v. State and others reported in PLD 1966 SC 708 followed in Kalu and others v. The State and others PLJ 1999 Cr.C. (Lahore) p.422.

5. Accordingly the order of the learned trial Court is set aside and the case is sent back to the learned trial Court for proceeding in the matter in accordance with law as observed above and as agreed upon by the learned counsel for the parties. The learned counsel representing the parties at the trial are supposed to go through the judgment of the honourable Supreme Court of Pakistan for regulating the proceeding. Order set aside. H.B.T./106/FSC Order accordingly