' M. BILAL KHAN, J.---The petitioner, namely, Noor Muhammad son of Ahmad Din, has filed this criminal revision challenging the vires of order, dated 3-5-2005 passed by the learned Addl.
Sessions Judge, Faisalabad whereby a private complaint filed by him (petitioner) had been dismissed.
2. The brief facts of the case are that the petitioner Noor Muhammad son of Ahmad Din and his co- accused Mushtaq son of Inayat, etc. Nine in number had been booked in case F.I.R. No,506 of 2003, dated 10-7-2003 registered with Police Station Chak Jhumra District Faisalabad, for offences under sections 302, 324, 148 and 149, P.P.C. At the instance of Saif son of Mehr Muhammad, the complainant. Or the murder of his brother Asghar son of Mehr Muhammad. Cross-version was recorded in the aforesaid F.I.R. At the instance of the present petitioner, wherein it was alleged that another person by the name of Ashiq son of Shana had also lost his life in the transaction and that the complainant party of F.I.R. No,506/03 was responsible for his murder. According to the cross- version said Ashiq son of Shana was a paternal cousin of the present petitioner and it was alleged that he had been killed by Saif son of Mehr the complainant in the F.I.R. And Akbar son of Rora by means of fire-arms. The motive according to the complainant of the cross-version was that he had purchased land measuring 108 Kanals 5 Marlas out of Square No,26 from Mst. Nooran Bibi wife of Noora for a consideration of Rs,15,50,000 on 19-2-2002 out of which an amount of Rs,14,00,000 had been paid as advance and an agreement to sell had been executed; since a stay order had been granted by the civil Court, registered deed could not be executed; that on 3-5-2003 Mst.
Nooran Bibi had died whereupon the complainant in the cross-version filed a suit for specific performance in the Court of Mr. Umar Sharif Sheikh, Civil Judge, Faisalabad and obtained a stay order; that the accused party in the cross-version had attacked the complainant party (in the cross-version) with the object of taking forcible possession of the said land and during the transaction Ashiq son of Shana had been killed whereas the complainant in the cross-version was injured.
3. It is an admitted position that the cross-version filed by the present petitioner in case F.I.R. No,506 of 2003 was investigated by the police, however, the same was rejected. Insofar as the investigation of case F.I.R. No,506 of 2003 was concerned, the accused persons nominated therein, other than Muhammad Yousaf, Mian Khan and Sadiq, were found to be guilty. The above named three persons were declared innocent by the police and were not challaned. Saif son of Mehra the complainant in case F.I.R. No,506 of 2003 being dissatisfied with the investigation filed a private complaint wherein all the accused persons nominated by him in the F.I.R. Had been summoned mid are facing trial before the leaned trial Court. Noor Muhammad the present petitioner who, as already stated elsewhere, was the complainant in cross-version, after rejection of the same also filed a private complaint in 15-2-2005. The said private complaint had been dismissed on 3-5-2005 by means of the impugned order.
4. I have heard the learned counsel for the parties and the learned Deputy Prosecutor-General Punjab at a great length.
5. It has been argued on behalf of the petitioner that on the basis of preliminary evidence recorded in the private complaint by the learned trial Court a clear-cut case had been made out against respondents Nos.1 to 11; that it had not been denied even by the accused persons in the private complaint that Muhammad Ashiq had lost his life during the course of the same occurrence and that F.I.R. No,506 of 2003 was conspicuous by any mention of the said murder; that mere delay in filing the complaint could not be valid reason for not summoning the accused persons. He finally argued that dismissal of the complaint at such an early stage amounted to guillotining the version of the petitioner in its infancy.
6. On the other hand the learned counsel for respondents Nos.1 to 11 argued that the cross-version put forward by the petitioner had been proved to be false; that there was an inordinate delay in filing the complaint which had rightly been dismissed by the learned trial Court and that the complainant had been filed only with a view to pressurizing and browbeating the complainant party in the F.I.R.
7. After having the learned counsel for the parties and the learned Deputy Prosecutor-General, it has been observed that challan in the police case (F.I.R. No, 506 of 2003) had been submitted on 21-10-2004 whereas according to the police record, the cross-version had been rejected on 11-8- 2003. The contention of the learned counsel for the petitioner, that the complainant in the cross- version could find out about the fate of cross-version only on submission of challan, cannot summarily be ruled out. Filing of the private complaint on 15-2-2005 i.e, within four months of filing of challan in the police case, could by no stretch of argument be termed as an inordinate delay. A perusal of the impugned order, dated 3-5-2005 whereby the private complaint of the petitioner had been dismissed reveals that the learned Addl. Sessions Judge had been prompted to dismiss the private complaint primarily on two grounds viz. Delay in filing the complaint and secondly that the version of the complainant had been found to be false during the course of police investigation. Another reason which had weighed with the learned Addl. Sessions Judge in dismissing the complaint was that the Court witnesses had tired to make improvements in their case. As far as the delay in filing the complainant is concerned, this aspect has already been dilated upon by this Court. The very consideration by the learned trial Court of the investigation process and the result thereof and thereafter proceedings to dismiss the complaint having been influenced by the said investigation is not tenable. A private complaint is always filed by someone who is not satisfied with the police investigation. There was no occasion for the learned trial Court/Addl. Sessions Judge to have been influenced by the result of the investigation in the cross- version and even reference to the said investigation was not called for. The so-called alleged reasons which weighed with the learned Addl. Sessions Judge in dismissing the complaint are contained in paragraph No,12 of the impugned order which reads as under:--- ' "The contradictions in the statements of. C.Ws. Suggest that the complainant is now trying to improve his case. In addition to this, the delay in filing this complaint is also fatal to the fate of this complaint coupled with the fact that a thorough investigation by the police was conducted and ultimately the version of the complainant, stated in his cross-version was found to be false. There is another aspect which goes against the case of complainant which, is that challan in this case were prepared on 15-7-2004 and 21-10-2004 so the complainant was well aware of the fate of his cross- version but why he chose to wait up-till 15-2-2005 to file this complaint, the reasons are best known to him as it is not explained by any means. However, it creates doubt in my mind about the vigil and truthfulness of complainant, I am convinced that the complainant has failed to make out a prima facie case for the summoning of accused to face trial. Even otherwise, the State case of F.I.R.
No,506 of 2003 and challan/ complaint case of the same occurrence is pending adjudication before this Court in which, the complainant can take this sentence in his defence for which, he still has ample opportunity. In these circumstances, I find no reason to accept this complaint and to summon the respondents as accused in this case to face trial. Hence, this complaint is dismissed being devoid of merits."
8. Mentioning of 14 persons as accused by Noor Muhammad (C.W.1) whereas the deposition of Yousaf son of Khan (C.W.2) that they were thirteen in number can hardly be termed as an improvement, which could justify dismissal of the complaint. This clearly shows that the learned Addl. Sessions Judge was swa yed in dismissing the private complaint on account of consideration, which were totally not sustainable in law. The private complaint filed by the petitioner could not be dismissed on the grounds which found favour with the learned Addl. Sessions Judge viz.
(i) Delay in filing the complaint;
(ii) Rejection of cross-version by the police; and
(iii) Divergent statements of C.W ' Nos.1, 2 and 3 regarding the number of accused persons who had allegedly participated in the occurrence.
9. This petition is allowed and the impugned order, dated 3-5-2005 is hereby set aside. The private complaint filed by the petitioner shall be deemed to be pending before the learned trial Court who shall proceed therewith strictly in accordance with law. There will be no order as to costs.