This is a petition under section 439, Cr. P. C. By Muhammad Ashraf, petitioner, against the order of Malik Akhtar Hassan, Sessions Judge, Sargodha, dated 30-10-1978, dismissing the private complaint filed by the petitioner on 22-1-1978, against Khair Muhammad and Muhammad Shafiq, respondents, and three others, under section 302/307/148/149, P. P. C.
2. The brief facts of the case are that on 17-11-1977 at about 8-30 a.m. An incident occurred in village Naushera, in which Noor Muhammad deceased, Muhammad Sadiq deceased, Muhammad Bakhsh deceased, on the side of the respondents, and Muhammad Latif deceased, on the side of the petitioner, lost their lives.
3. At 10-30 a.m. The same day Khair Muhammad, respondent No. 1, lodged F.I.R. No. 42, at Police Station, Naushera, with regard to the said incident and later at 4-15 p.m., Muhammad Ashraf petitioner's dying declaration was transposed by the police as F. I. R. No. 43 at the same police station regarding the same incident.
4. In the report relating to F. I. R. No. 42, lodged by Khair Muhammad, respondent No. 1, he stated that on the day of occurrence at about 8-30 a.m. He was armed with a double-barrel gun, his, brother Noor Muhammad was armed with a single-barrel .12 bore gun, Muhammad Sadiq and Muhammad Bakhsh empty-handed were going and when they reached near the graveyard of the village, they noticed Muhammad Ashraf, the petitioner (armed with a laths) along with Muhammad Aslam (armed with a gun), Akmal Din (armed with a gun), Muhammad Saeed (armed with a gun) Muhammad Latif deceased (armed with a hatchet), Sher Muhammad (armed with a hatchet),. Qamar Din (armed with a lathi) and Abdul Majid alias Bala (armed with a lathis) coming from their back side, who raised a lalkara and attacked them. Muhammad Aslam fired which missed the target, whereupon they turned their faces towards the petitioner and his companions and took their position while lying on the ground. Noor Muhammad fired in turn. Akmal Din, Muhammad Saved and Sher Muhammad changed their position and came from the opposite direction and Muhammad Saeed fired His party changed their position. Akmal Din and Muhammad Aslam came in from of them and fired with their guns, which hit Muhammad Bakhsh in, his belly. He fell down and thereafter Muhammad Latif gave hatchet blows which hit him on his forehead and head. Muhammad Sadiq was given a hatchet blow on his bead by Sher Muhammad and he sat down. While he was sitting, Abdul Majid alias Bala hit him on his head with a heavy stone.
Muhammad Sadiq and Muhammad Bakhsh died on the spot. Muhammad Saved opened fire with his gun, which hit Noor Muhammad. While he was falling down he was given a lathi blow by Qamar Din. Noor Muhammad also died on the spot. When Muhammad Ashraf, petitioner, Sher Muhammad and Qamar Din attacked him, he fired his gun in self--defence, which hit Muhammad Ashraf petitioner. Qamar Din gave a lathi blow to him. Sher Muhammad snatched away the gun from him.
Muhammad Latif had been injured by Noor Muhammad. He added that the cause of the occurrence was that Muhammad Bakhsh deceased had illicit relations with the sister of Muhammad Aslam and that about 15 or 16 days before the occurrence; Muhammad Aslam was sitting on the way leading to the house of Muhammad Bakhsh whereupon Muhammad Bakhsh has suspected him. Muhammad Bakhsh had asked Muhammad Aslam to go away, which led to an altercation.
5. After the registration of the F. I. R. No. 42, the petitioner and his six companions were arrested. The petitioner, being seriously injured and in a precarious condition, was taken to Civil Hospital, Naushera, where he was medically examined at about 11-30 a.m. At about 4-00 p.m., the Naib- Tehsildar recorded the dying declaration of Muhammad Ashraf, petitioner, with the permission of the Medical Officer. On the basis of this dying declaration which was recorded, F. I. R. No. 43 was registered at Police Station, Naushera, the same day at 4-15 p.m.
6. In the report relating to the case registered as F. I. R. No. 43, lodged on the dying declaration of Muhammad Ashraf, petitioner, the: petitioner stated that he was a sepoy in the Pakistan Army posted at Abbottabad and on 13-11-1977 he had come on five days' leave. On 17-11-1977, at about 8- 30 a.m. When his brother Muhammad Aslam and Muhammad Latif deceased were going to see him off to the bus-stand, they reached near the graveyard: They were waylaid by Khair Muhammad, respondent No. 1 (armed with a gun), Muhammad Shafiq, respondent No. 2, (armed with a gun), and Muhammad Bakhsh, Noor Muhammad and Muhammad Sadiq (all now deceased). Khair Muhammad, respondent No. 1, opened fire with his gun, which hit Muhammad Latif deceased in his belly and he died on the spot. Muhammad Aslam also fired in self--defence.
Khair Muhammad, respondent No. 1 came near him, and fired with his gun, which hit his right arm.
He then snatched the gun of Khair Muhammad, respondent No. 1 whereupon Muhammad Shafiq, respondent No. 2, fired with his gun, which hit him in the belly and on his left hand and he fell on the spot. He was taken to the hospital by his uncle Abdul-Sattar and Qamar Din.
7. The police, after investigation, challaned the petitioner and his companions in respect of the case lodged at the instance of Khair Muhammad, respondent No. 1. However, as regards the case lodged by Muhammad Ashraf, petitioner, the respondent and his companions were neither arrested nor challaned. In fact, the police finally decided to cancel this F. I. R.
8. Being aggrieved by the action of the police, the petitioner on 22-1-1978 lodged a private complaint before the Ilaqa Magistrate, Jauhar--abad, against respondents Nos. 1 and 2, under section 302/307/148/149, P. P. C. (Annexure 'A' to the petition). In the complaint the petitioner alleged that about 8 or 9 months before the alleged occurrence Abdul Majid alias Iqbal alias Bala had developed illicit relations with Mst. Mariam Khatun, daughter of Yaseen. He got her married through Hafiz Noor Din, Imam Masjid, in presence of the witnesses. A photostat copy of the Nikah Nama was enclosed with the complaint. It was stated that the said Abdul Majid was brother-in-law of Muhammad Aslam, the brother of the petitioner, and that Mst. Mariam Khatun was the daughter of a cousin of Khair Muhammad,-respondent No: 1 who wanted to marry her to a son of his cousin.
Knowing about the proposed marriage, the petitioner's brother Muhammad Aslam brought it to the notice of respondent No. 1 Khair Muhammad, that she had already been married to Abdul Majid.
Respondent No. 1 took it ill and held out a threat to Muhammad Aslam that he would avenge the insult. That on the day of occurrence, on his way back to Abbottabad at about 8-30 a.m. And because of threats of the respondent he was escorted by his brother Muhammad Aslam, armed with a gun, and the latter's brother-in-law Muhammad Latif deceased. When they reached near the graveyard, respondents Nos. 1 and 2, along with Muhammad Saddiq, Muhammad Bakhsh and Noor Muhammad, who were proceeding ahead of the petitioner's party, started firing with their weapons. Khair Muhammad and Muhammad Shafiq, respondents Nos. 1 and 2, were carrying guns, Muhammad Bakhsh had a pistol and Muhammad Sadiq had a hatchet. During the attack, Khair Muhammad and Muhammad Shafiq, respondents, and Muhammad Sadiq deceased took shelter behind the kotha while Muhammad Bakhsh and Noor Muhammad had hidden them--selves behind a banns of a field. The petitioner and his two companions ran behind a wall of the graveyard but were followed by Muhammad Shafiq, Khair Muhammad and Muhammad Sadiq. In the meantime, they were challenged from the opposite side by the other two persons, namely, Noor Muhammad and Muhammad Bakhsh. Khair Muhammad fired a shot hitting Muhammad Latif in his belly and he died. Another shot by Khair Muhammad hit the petitioner on his right arm but then be grappled with Khair Muhammad snatched away his gun. Thereafter, Muhammad Shafiq, respondent No. 2, fired on the petitioner, hitting him on his hand and abdomen. After receiving these injuries, the petitioner fell down but his brother Muhammad Aslam continued firing on the respondent party, in defence. On hearing the gunshots, Ghulam Qadir, Noor Muhammad and Qamar Din turned up Muhammad Sadiq attempted to attack the said Qamar Din but Qamar Din was able to snatch his hatchet. Noon Muhammad started pelting brick-bats on the respondent party and Qamar Din used the hatchet in his hand in their defence. Khair Muhammad and Muhammad Shafiq, respondents, ran away and later it transpired that Muhammad Bakhsh, Noor Muhammad and Muhammad Sadiq had died on the spot.
9. The learned Sessions Judge, after examining Muhammad Ashraf petitioner, marked the complaint to the Ilaqa Magistrate for an inquiry under section 202, Cr. P. -C. The learned Magistrate Mr. Muhammad Mushtaq Ahmed Khan Niazi, Magistrate Section 30, Jauharabad, then examined Muhammad Aslam and Ghulam Qadir witnesses during the course of inquiry. The learned Magistrate, by his order dated 5-7-1978, found that the complainant has miserably failed to establish a prima facie case against both the respondents and recommended that the complaint be dismissed. Attested copy of the report of the learned Magistrate is annexed as Annexure 'B' to the petition. Later, the learned Sessions, Judge, by his impugned order, dated 30-10-1975, dismissed the complaint of the petitioner. -An attested copy of the order of the learned Sessions Judge is annexed as Annexure 'C' to the petition. Being aggrieved by the order of the learned Sessions Judge, the petitioner has filed the present petition which is now before me for disposal.
10. The learned counsel for the petitioner submitted that the order of the learned Sessions Judge was not only illegal but also perverse. It was submitted that the order was illegal and the learned Sessions Judge did not examine the preliminary evidence recorded to find out whether there was a prima facie case made out against the respondents, but rather conducted-a mini trial, appraised the evidence critically and then came to certain conclusions which was only within the jurisdiction of the trial Court to do. It was further submitted that the order of the learned Sessions Judge was perverse and that his appreciation of the evidence was not only faulty and defective, but that which no Court could arrive at. It was also submitted that the report of the police asking the Court for cancellation of F. I. R. No. 43 was not conclusive qua the trial Court, nor was the report -of the learned Sessions Judge based upon sound reasoning. Lastly, it was submitted that the incident between the parties was not denied and that since both the F. I. Rs. Related to one and the same occurrence and the preliminary evidence recorded in the complaint case showed that Muhammad Latif had died due to the firing of the two respondents and their companions, a prima facie case was established for the complaint case to be tried by the learned Sessions Judge. In these circumstances, it was submitted that the impugned order of the learned Sessions Judge was illegal and perverse and deserved to be set aside and. The case be remanded for a regular trial.
11. The learned Assistant Advocate-General, who appeared for the State, strongly opposed the petition. He submitted that on the facts found by the learned Sessions Judge in his impugned order dated 30-10-1978, no prima facie case appeared against the respondents to warrant their trial under section 302/148/149, P. P. C. He further submitted that the learned Sessions Judge did not conduct a mini trial but only examined the preliminary evidence with a view to coming to a conclusion whether a prima facie case was made out and having come to the said conclusion, which was based on cogent reasoning, the same could not be set aside in revision. The learned counsel for the private complainant supported the argued of the learned counsel for the State, without making any further submissions.
12. I have given my anxious consideration to this case. If one reads both the F. I. Rs. No. 42 and 43, it is clear that they relate to the same incident, in which Muhammad Latif died and Muhammad Ashraf, petitioner, was injured, on the side of the petitioner party, and Noor Muhammad, Muhammad Sadiq, and Muhammad Bakhsh died, on the side of the respondents. The complaint lodged by the petitioner on 22-1-1978 relates to the same incident and not any other. The venue of the occurrence (the graveyard) is also one and the same and not separate. Khair Muhammad, respondent No. -1, in his own F. I. R. No. 42, admitted that he had fired with his gun in self-defence which hit Muhammad Ashraf, petitioner; that Qamar Din gave a lathi blow to him; that Slier Muhammad snatched away his gun; and that Muhammad Latif (deceased) had been injured by Noor Muhammad. Muhammad Latif deceased's death is admitted by Khair Muhammad, respondent No. 1, in his own F. I. R., as being caused by his own companion Noor Muhammad. It is in the special background of these fats that the impugned order of the learned Sessions Judge deserves to be appraised.
13. The learned Sessions Judge dealt with eight main matters in coming to the conclusion that the preliminary evidence did not disclose a prima facie case. First, that the F. I. R. No. 43 lodged at the instance of the petitioner was recorded at 4-15 p.m., whereas the occurrence took place at 8-30 a.m. And that the delay of eight hours was meaningful and possibly utilized to cook up a false case Second, that though the F. I. R. Was recorded on the basis of a dying declaration made by the petitioner, which dying declaration, being made at a time when the-maker was expecting death, he was expected to tell the truth the petitioner failed to disclose the motive in his dying declaration, which omission was material, as it enabled him to supply any motive at a later stage. Third, that in the F. I. R. No. 43, the petitioner had imputed no weapons to Muhammad Bakhsh, Noor Muhammad and Muhammad Sadiq deceased persons, but that in his private complaint he had stated that Muhammad Bakhsh was armed with a pistol and Muhammad Sadiq with a hatchet and yet, later, in his preliminary evidence he submitted that Noor Muhammad was armed with a gun, and that thus he improved upon his earlier case. Fourth, that the story, as disclosed by the witnesses, was improbable. Fifth, that in the dying declaration, the petitioner stated that Abdus Sattar was his uncle, whereas in the complaint he stated that his uncle later was named Ghulam Qadir and not Abdus Sattar. Sixth, that though it was disclosed that the whole village had turned up on hearing gun reports, but the complainant had chosen only his uncle Abdus Sattar and cousin Qamar Din to be cited as eye-witnesses. And last, but not the least, since the uncle and cousin did not receive any injury, very likely they were not witnesses.
14. As regards the delay in the lodgment of the F. I. R., it is not denied that Muhammad Ashraf petitioner was hit seriously in the chest, that he was straightaway admitted to hospital where he was medically examined at about 11-30 a.m. And that the police got his dying declaration recorded by the Tehsildar at 4-00 p.m., on the basis of which the police themselves registered the F. I. R. At 4- 15 p.m. The delay was, therefore, fairly explained, but issuming it was inordinate, it was not material, as the incident was admitted by both the sides. As regards the absence of motive in the dying declaration, the fact that the petitioner was in a precarious condition and may have failed to give the motive due to his sufferance; has not at all been considered. As regards some discrepancy about the name of the uncle, who took him to the hospital, the petitioner stated in the dying declaration that Ghulam Qadir took him to the hospital and that Abdul Sattar was neither his uncle nor relative, but Ghulam Qadir P. W. 3 stated in his evidence that he was also known by the name of Abdus Sattar. As stated, already, due to his precarious condition, the petitioner may not have stated that Ghulam Qadir alias Abdus Sattar his uncle took him to the hospital, but nothing material turns on this. As regards the finding that Abdus Sattar and Qamar Din, who were stated to have rescued the petitioner, had no injuries on their person and, therefore, were probably not there and did not witness the occurrence, the inference is only conjectural. Qamar Din"s presence is admitted by respondent No. 1 in his counter F. I. R. As regards other findings arrived at by the learned Judge, they are purely conjectural.
15. In the first instance, I am somewhat surprised that the learn Sessions Judge did not set out briefly or refer to the preliminary evidence of Muhammad Ashraf petitioner P. W. 1, Muhammad Aslam P. W. 2 an A Ghulam Qadir P. W. 3 recorded by him and the Magistrate, in his order dated 30- 10-1978 failed to assess whether a prima facie case from the petitioner' F. I. R. No. 43, dated 17-11- 1977 and his subsequent complaint dated 22-1-1978. Was made out the learned Sessions Judge straightaway made a critical analysi4 of the evidence in its minutest details, more in the line of a mini trial, and threw out the complaint on the ground that it was not substantiated by sound material. And if one reads the order of the learned enquiry Magistrate, the position is no better. The Enquiry Magistrate also did not set out briefly or refer to the evidence of Muhammad Ashraf petitioner P. W. 1, Muhammad Aslam P. W. 2 and Ghulam Qadir P. W. 3 to assess whether a prima facie case was made out. After reproducing brief facts from the petitioner's dying declaration (as reproduced in F. I. R. No. 43), the learned Enquiry Magistrate straightaway proceeded to a critical analysis of the evidence recorded, alluded to some improve--ments made by the petitioner in his subsequent complaint and then came to the conclusion that the story as pleaded by the complainant appeared incredible, which threw a serious doubt on their version. The learned Magistrate then finally expressed the view that the three witnesses could not be implicitly relied upon, that they had deliberately minimised their own role, that their story was incredible and that the complaint was, therefore, not maintainable. Both the learned Sessions Judge and the enquiry Magistrate did hot reproduce or refer in detail to the evidence of the three eye-witnesses nor applied their mind to the case, in the background of the facts submitted in para 8 above, to make a fair assessm ent whether a prima facie case was made out against the two respondents (who were the only two respondents named in the complaint) connecting them with the death of Muhammad Latif and injuries inflicted on the petitioner.
16. The object of examining a complainant under section 200, Cr. P. C. Is to enable the Court to be satisfied that a prima facie case is made out against one who is accused of a criminal offence. The primary object is to protect the public against false or frivolous accusations and to ensure B that the evidence reasonably connects the accused named, with the offence imputed to him. The object of the enquiry under section. 202, Cr. P. C., though styled as one "for the purpose of ascertaining the truth or falsehood of the complaint", is also one basically intended for the same purpose. In an enquiry under section 202, Cr. P. C., the Court can also examine, with certain safeguards, material not necessarily furnished by the complainant, such as police records, recoveries etc., to find out the truth or falsity of the allegations made in the complaint. Where a magistrate examines witnesses who depose against the complainant's case, justice demands that he gave an opportunity to the complainant to explain or meet such evidence. But other than this difference, proceedings under section 200, Cr. P. C. Or 202, Cr. P. C. Are not intended to be converted into a mini or full dress trial or a rehearsal thereof or to give the Court power to do that which must properly wait till process is issued. What is to be seen is whether the evidence recorded, if left unrebutted, leads to the inference that the accused named is or are guilty of the crime imputed.
Where a judge fails to observe these principles, he violates the very purpose for which the inquiry is intended.
17. In the instant case, the evidence of Muhammad Ashraf, petitioner, as recorded by the learned Sessions Judge, is almost similar to the allegations made by him in his complaint. The allegations made by the petitioner in his complaint are reproduced in para 8 above and need not be repeated here. The petitioner's preliminary statement being on lines parallel to the allegations made by him in his complaint, also nerd not be reproduced here in extenso. In short, the petitioner submitted that he with his brother Muhammad Aslam (armed with a gun) and the latter's brother-in-law Muhammad Latif were proceeding towards the bus stop at about 8-30 a.m. The petitioner's leave was expiring on the date of incident and he was to go to Abbottabad and all three were proceeding towards the bus stop as he had to catch a bus. When they reached near the graveyard, Khair Muhammad and Muhammad Shafiq, respondents Nos. 1 and 2, and Muhammad Sadiq, Muhammad Bakhsh and Noor Muhammad, who were proceeding ahead of them, started firing at them with their weapons. Both respondents Nos. 1 and 2 and Noor Muhammad had guns, Muhammad Bakhsh had a pistol, and Muhammad Sadiq had a hatchet. The details of the attack, the parts played by each accused, the manner in which the complainant party tried to defend themselves, are all given in para 8 above. According to Muhammad Ashraf petitioner P. W. 1, Khair Muhammad respondent No. 1 fired at Muhammad Latif, hitting him in his belly, as a result of which he died. Khair Muhammad respondent No. 1 fired a second shot hitting the petitioner on his right arm, but then he grappled with Khair Muhammad and snatched the gun from him. Thereafter, Muhammad Shafiq respondent No. 2 fired at him, hitting him in his abdomen. Due to these injuries, he fell down, but his brother Muhammad Aslam continued firing on the respondent party in defence. In the meantime, Ghulam Qadir, Noor Muhammad and Qamar Din came to their rescue.
Muhammad Sadiq wanted to attack Qamar Din, but the latter snatched the hatchet from him. Noor Muhammad threw stones at the respondent party. Khair Muhammad and Muhammad Shafiq, respondents Nos. 1 and 2, -ran away, leaving behind Muhammad Bakhsh, Noor Muhammad and Muhammad Sadiq, whom they found had died. The evidence of Muhammad Aslam P. W. 2 and Ghulam Qadir P. W.'3 corroborates the evidence of Muhammad Ashraf, petitioner, P. W. 1, in all material particulars. The only glaring improvements made by the petitioner group in their complaint and the evidence in support thereof, as opposed to the story originally pleaded by the complainant in the F. I. R. No. 43, is that previously Muhammad Bakhsh, Noor Muhammad and Muhammad Sadiq (of the respondent party) had been shown as empty handed, whereas later in the complaint, Muhammad Bakhsh was stated to be armed with a pistol and Muhammad Sadiq with a hatchet and still later, in evidence, Noor Muhammad was stated to be armed with a gun..
These improvements, at best, only show that these three persons, who are now dead, though they were present at the time of incident with their companions, were unarmed and had not fired at the petitioner party. But then, they could not be excluded .On any account. Their participation with the respondents was mentioned in the F. L.R. No. 43. The application of section 149, P. P. C. Could not be denied. However, whatever be the effect of this improvement, the fact remains that with the death of Muhammad Bakhsh, Noor Muhammad and Muhammad Sadiq, the complaint had been filed only against Khan Muhammad and Muhammad Shafiq, respondents Nos. 1 and 2, and their prima facie participation in the offence was clear and undisputed. The three deceased were not respondents named in the complaint. No process had to be issued to them. Even assuming they were alive, at best, the Sessions Judge need not have issued process to them. The case of the respondents suffered from no such doubts. A prima facie case against them stood established.
The appraisal of the evidence made by the learned Sessions Judge was in the nature of a mini trial, was illegal and improper and must be set aside.
18. The only question that now remains to be decided is whether this case should be sent back for further inquiry or should be sent back wit the direction to the learned Sessions Judge, Sargodha, to issue notices to the two respondents to stand trial in accordance with the law. Under section 436, Cr. P. C. The High Court has the power to direct a further inquiry into any complaint which has been dismissed under section 203 B or under section 204, Cr. P. C. Prior to the Law Reforms Ordinance, 1972, it also had power under the same section to order a further inquiry into the case of any person accused of an offence who had been discharged. In Jamsheed v. Amin-ur-Rashid (1964 P Cr. L J 250), as order of discharge of an accused was passed by the learned Magistrate under section 253(1). Cr. P. C. Against the said order of discharge the learned Sessions Judge was moved under section 436, Cr. P. C., but the learned Additional Sessions Judge rejected the petitioner. The complainant, thereupon moved the High Court under section 439 of the Cr. P. Against the order of discharge of the accused passed under section 253(1), Cr. P. C. The Division Bench of the Dacca High Court in this case that though under section 436, Cr. P. C. The Sessions Judge had concurrent power with the High Court to direct further inquiry but the power of the High Court under section 439, Cr. P. C. Was very wide and it could revise the proceedings or orders passed by any of the inferior criminal Courts in the exercise of its revisional jurisdic--tion in a proper case. After coming to the finding that the order of discharge passed in the case was unreasonsble and perverse, the Division Bench set aside the order of the Magistrate and sent back the case to the learned Magistrate with a direction to proceed with the trial in accordance with law from the stage at which the case was fixed for framing of charge, if any. Relying upon the said ruling, I am of the view that under section 439, Cr. P. C. The powers of the High Court are wide and I can send back C the case to the learned Sessions Judge with the direction to treat the case as one in which a prima facie case has been made out against both the respondents and to proceed .In accordance with law from that point.
19. For the foregoing reasons, I accept this petition. The order complained of is, therefore, set aside.
The case is sent back to the learned Sessions Judge with a direction to proceed with the case as if sufficient, grounds for proceeding or a prima facie case has been made out against the two respondents and to proceed with the case in accordance with the law from that point.
20. The learned counsel for the petitioner has urged that since the challan case has been referred to the Special Military Court, that I should also pass an order directing the learned Sessions Judge to send the complaint case to the Military Court as well. I am afraid I cannot do such a thing, but it is obvious that where there are two cross cases relating to the same occurrence, equity and justice require that the same be placed for hearing before the same Judge so that a proper appraisal of both the cases may be made and a proper decision arrived at. I am no doubt sure that the learned Sessions Judge, in collabora--tion with the Prosecuting Deputy Superintendent of Police, wilt take necessary steps in that direction, so that this rule, which has now received sufficient judicial recognition in our Courts, is not violated.