' IJAZ AHMAD CHAUDHRY, J.---Through this petition under section 439, Cr.P.C. The petitioner has challenged the order, dated 27-10-2004 passed by learned Additional Sessions Judge, Jampur, through which he has refused to summon the accused/private respondents to face private complaint.
2. The brief facts of the case are that the petitioner filed a private complaint before the learned Additional Sessions Judge; Jampur on 28-6-2004 against Riaz alias Riazi, Muhammad Afzal son of Piran Ditta and Muhammad Kaleem son of Karim Bakhsh under section 302/34, P.P.C. For the murder of his son Munir Hussain alleging therein that he on 11-5-2004 along with his son Munawar Hussain at about Assarwela was present at his house when Riaz Hussain alias Riazi and Muhammad Afzal friends of his son Muneer Hussain had taken him away while saying that he would come back after two hours, but he did not come back whereupon they became conscious and the complainant along with his son Munawar Hussain started search of him when Allah Ditta son of Bahadur told that he had seen Muneer Hussain his son in the company of Riaz Hussain alias Riazi and Muhammad Afzal boarding the wagon at Adda Mehre Wala bound for Fazilpur. Then they went to Fazilpur where Malang son of Sultan Balora told that he had seen all the above-mentioned three persons including Muneer Hussain alighting from the bus. On query of the said P.W. Riaz alias Riazi respondent told that they were going for some urgent piece of work. It is further alleged in the complaint that at about 5-00 a.m. Mashkoor Hussain son of Abdul Hussain and Akhtar Abbas son of Ali Muhammad came to the complainant's hosue and told that at about 12-30 in the night when they were going from Khosa Colony near Railway Station to Jampur and reached near the house of Muhammad Kaleem, they saw in the light of bulb on the electric pole Riaz alias Riazi who was raising Lalkara that lesson would be taught for abduction of his sister-in-law (Bhabhi) and handing her over to Akbar son of Bakhsh Gopang. Then Riaz made a fire upon Muneer hitting on the right thigh and Muhammad. Kaleem made two fires on left side of the belly. Muneer Hussain fell down on the ground. Muhammad Afzal armed with Soti threatened the P.Ws. Not to come near otherwise they would be dealt with seriously. They raised noise upon which the accused persons ran away with their respective weapons of offence. The said P.Ws. Took care of Muneer Hussain, who was unconscious. After leaving Akhtar Abbas with the injured Mashkoor Hussain went to the police station and a constable came at the spot who, got admitted the injured in the hospital. Thereafter the P.Ws. Went to the complainant to inform him about the occurrence. Then the complainant went to D.G. Khan where Muneer Hussain had already died, whose dead body was brought to Jampur Hospital. The complainant had asked the Investigating Officer for registration of the case, who replied that the occurrence was already reported. Thereafter the police was contacted many a times, but they in connivance with the accused party did not register the case.
3. The motive behind the occurrence was alleged that the accused suspected that the deceased was involved in the abduction of brother's wife of Riaz alias Riazi, who has contracted marriage with Akbar son of Bakhsha.
4. The learned Additional Sessions Judge had recorded cursory evidence of the complainant and referred the matter to the learned Magistrate who after conducting the inquiry under section 202, Cr.P.C. Submitted report before the learned Additional Sessions Judge. The petitioner produced Akhtar Abbas son of Ali Muhammad as P.W.1, Mashkoor Hussain as P.W.2, Allah Ditta as P.W.3, Malang as P.W.4 and Munawar Hussain as P.W.5. He also produced post-mortem report, the medico-legal report and copy of the F.I.R. And closed the preliminary evidence. The learned Additional Sessions Judge through the impugned order has dismissed the private complaint which is being assailed through this petition.
5. Learned counsel for the petitioner contends that sufficient evidence has been brought on the record, which makes out a prima facie case against the private respondents but in spite of that the learned Additional Sessions Judge has not summoned the private respondents on surmises and conjectures mainly on the ground that there was delay of 30 days in lodging the private complaint.
It is further contended that mere delay in such-like cases is not a ground to outrightly reject private complaint. It is further contended that the learned Additional Sessions Judge has relied upon the finding of the police which is not binding on the Courts while there was sufficient material available on the record to prima facie connect the respondents with the commission of the crime. It is next contended that the petitioner had moved an application to the learned Justice of the Peace/Sessions Judge, Rajanpur which was disposed of with the direction to the police to conduct impartial investigation for unearthing the truth that whether it was a case of dacoity or murder.
6. On the other hand, learned counsel for respondent No.:1 has opposed this petition on the ground that respondent No.3 was working in Dubai, who came back 15/16 days before the alleged occurrence. According to the learned counsel the deceased along with his two companions had come to the house of respondent No.3. For dacoity and was fired at in self-defence. It is further contended that Munir Hussain son of the petitioner was involved in number of criminal cases and according to the police investigation he was member of famous Bosan Gang whereas the story introduced by the petitioner is afterthought and the private complaint has been rightly dismissed on valid reasons.
7. I have heard the learned counsel for the parties and also perused the record including the preliminary evidence with due care and caution.
8. Admittedly the occurrence had taken place near the house of respondegt No.3 during the midnight and the deceased was not resident of the said locality. According to P.Ws.1 and 2 they had seen the very occurrence and also went to the police station immediately thereafter for reporting the occurrence. Even the version of the petitioner/complainant is that he was informed about the occurrence on the next day and he had started efforts for registration of the case, but the needful was not done. There is nothing on the record that the petitioner or P.Ws.1 and 2 had ever made any application to the S.H.O. Or the highups that their version was not being brought on the record. The instant private complaint was filed on 11-6-2005 after one month of the alleged occurrence and then he also moved application to the learned Justice of the Peace on 26-7-2004 for registration of the case, which has been dismissed. On the other hand respondent No.3 promptly got lodged F.I.R. No.206 of 2004 at Police Station Jampur at 1-15 a.m. On the same night of the occurrence that the deceased along with his companions had come to his house in the midnight for dacoity. They fired at him, but he saved him while laying on the ground and the deceased was fired at by him in self-defence. According to learned counsel for respondent No.3 the deceased was involved in 39 criminal cases. The possibility of his going to the house of respondent No.3, who had come back from Dubai just 15/16 days earlier thereto, for commission of dacoity cannot be ruled out. Even otherwise the police during the investigation has found the version of respondent No.3 given in the F.I.R. As correct. The Courts do not act in vacuum and while summoning the accused to face the trial in a murder case great care and caution has to be taken.
9. It is strange that when it had come to knowledge of the petitioner on the very next day of the occurrense that the case had already been registered on the statement of respondent No.3, which even otherwise lends support to the version of respondent No.3 that the case was got promptly lodged, why he had waited for a long period of one month for filing of this private complaint and why the highups of police were not moved any application in this regard. As such the story narrated by the petitioner seems to be doubtful. No doubt that mere delay in lodging of criminal cases is not a ground for outright acquittal of the accused, but the present was a murder case of real son of the petitioner and according to his version he was informed about the culprits on the very next day, but keeping mum for one month is deplorable, which is fatal to his version, which appears to have been got introduced as a counterblast. Admittedly, the petitioner himself was not the eye-witness and P.Ws.1 and 2 were also not residing in the vicinity of the place of occurrence.
Their presence during odd hours of night at the place of occurrence coupled with the delay in lodging of the private complaint is not believable. The learned trial Court has given valid reasons for dismissal of the private complaint. The learned counsel for the petitioner has failed to show any material illegality or jurisdictional defect in the impugned order, which is maintained.
10. For the foregoing reasons, I do not find any merit in this revision petition, which is dismissed.