I shall dispose of two petitions bearing Cr.M.No, 16-Q of 2008 titled Maulana Muhammad Akram Awan and 6 others Versus District and Sessions Judge, Khushab etc. and Cr. M. No, 992-M/08 titled Asif Iqbal Versus The State etc. under Section 265-K Cr.P.C. as both these petitions arise out of a consolidated order dated 6.3.2008 whereby application filed by the petitioners Asif Iqbal etc. for their acquittal in case FIR No, 56 dated 18.5.2006 offence under Sections 302/109/148/149 PPC registered with Police Station Naushera District Khushab was dismissed whereas application under Section 265-K Cr.P.0 for acquittal filed by Maulana Muhammad Akram Awan and 6 others in complaint case under Sections 324/440/342/148/149 and 109 PPC was also dismissed.
2. Both the rival parties have challenged the order passed by the learned Sessions Judge, Khushab dated 6.3.2008.
3. Firstly I take up the case of Asif Iqbal and 9 others who are petitioners in Cr. M. No, 992-M/08 as all these petitioners are accused of State case of FIR No, 56 dated 18.5.2006 offence under Sections 302/109/148/149 PPC registered with Police Station Naushera Virkan.
4. The brief facts of the case as per FIR are that on 18.5.2006 about 5.15 a.m. Muhammad Hussain and Zahid Hussain were going from the dera of complainant to land situated in Gabair wala for watering. When they reached near "Barsati Nala" Khabeki at about 6.00 a.m., suddenly accused persons, Sohail, Ejaz Ayub, Arshad, Kashif Iqbal, Dost Muhammad, Noor Ahmad along with Ten unknown persons armed with firearms emerged there, made indiscriminate firing. Consequently, Zahid Hussain and Muhammad Hussain succumbed to their injuries., Matter was reported to the police whereupon above said FIR was registered. Police set the law in motion, arrested the accused, prepared report under Section 173 Cr.P.C. and sent the accused to Court to face trial.
5. The gist of the story of complaint case titled Asif Iqbal Versus Maulana Muhammad Akram Awan and 13 others is, that forefathers of complainant Asif Iqbal being residents of village Khabeke were cultivating the land in dispute being owner in possession since, 1895. Same was leased out to them by the then Collector vide order dated 7.7.1918 and the accused Maulana Muhammad Akram Awan along with 102 members of illegal force in China Uniform riding on three Mini Truck led by a Land Cruoser in which Maulana Muhammad Akram Awan was also present reached at his dera, Qadeerabad and directed his co-accused to forcibly occupy the land of dera of complainant of complaint case (Asif Iqbal), as a result of this conspiracy and abetment on the fateful day his co- accused made firing in result thereof their own two companions Zahid Hussain and Muhammad Hasnain were murdered in an attempt to take possession of the land of Asif Iqbal etc. and two goats worth Its. 10,000/- of the complainant were injured. On hearing the noise of firing people of the locality attracted on the spot and made aerial firing. On seeing them, accused along with firearms fled, along with bags of cartridges and both the goats (one injured, other killed). Hence the private complaint was filed by Asif Iqbal on 16.2.2007 under Sections 302/324/440/342/511/365/148/149/38/468/471 PPC. The complaint filed by Asif Iqbal was dismissed in limine by the then learned ASJ, Khushab vide order dated 27.3.2007 holding that private complaint has been filed after due deliberation to benefit the accused nominated in FIR No, 56/06 registered with Police Station Naushera. The said order was challenged before this Court through Cr. Rev. No, 315/07 and same was set aside by this Court vide order dated 1.6.2007 on the ground that said order of dismissal was passed without recording cursory evidence which was the mandatory requirement under Section 200 Cr.P.C., After remand the learned Sessions Judge, Khushat recorded the statements of four witnesses namely Asif Iqbal (PW.1), Muhammad Habib (PW.2), Fateh Muhammad (PW.3) and Gul Muhammad (PW.4) who summoned the accused (petitioners of Cr.M.16- Q/08) Maulana Muhammad Akram Awan and 6 others to face trial only under Sections 324/440/342/148/149/109 PPC vide order dated 31.7.2007 and in pursuance of the said order the petitioners (Maulana M. Akram Awan etc) approached the learned Sessions Judge, Khushab and then filed the application under Section 265-K Cr.P.0 which was dismissed through the consolidated order mentioned above.
6. Learned counsel Mr. Rehan Faheem Mahal, for the petitioner in Cr. Misc. No 992-M/08 (accused of state case) has contended, that none of the petitioners is nominated in the FIR. In fact fore- fathers of the petitioners were allotted the land, subject matter of the dispute, by the then Collector in 1918. They were cultivating the same and factum of their possession is admitted one whereas Respondent No, 2 (Maulana Muhammad Akram Awan) has established an army and group of terrorists in order to grab the land of innocent persons and he has gathered wagabonds who are resident of different areas of the country and wanted to forcibly occupy the land which was in possession of the petitioners and in consequence thereof they committed double murder of their own party men and there is no evidence against the petitioners Asif Iqbal etc. hence they are entitled to acquittal or otherwise trial of State case as well as the complaint case should be allowed to be conducted by the learned trial Court.
7. On the other hand, Malik Abdul Wahid, Advocate as well as Mr. Imran Raza Chadhar appearing on behalf of complainant of FIR No, 56 of 2006 and petitioners Maulana Muhammad Akram Khan Awan in Cr. M. No, 16-Q/08 respectively have contended that Asif Iqbal, etc. petitioners of Cr. M. No, 992-M/08 are accused of double murder case. There is voluminous evidence on record connecting the said accused with the commission of crime of double murder whereas there is no evidence in the complaint case for the purpose of trial of Maulana Muhammad Akram Awan and 6 others who are petitioners in Cr.M.16- Q/08 and version of the complainant of complaint case Asif Iqbal even did not find favour with the learned ASJ as they have not been summoned to face trial under Section 302 PPC but only to the extent of Sections 324, 440, 342, 148, 149 and 109 PPC and there is no evidence available whereby the alleged offences have been made out.
8. Both the learned counsel for the parties Mr. Rehan Faheem Mahal, Advocate as well as Malik Abdul Wahid and Ch. Imran Raza Chadhar, Advocate were heard. They completed their arguments on 25.9.2008 but case was adjourned for 26.9.2008 for the perusal of the police record. On 26.9.2008 the record was- not available. However further arguments of both the parties were partly heard. On 29.9.2008 the record of the case was produced and same was perused but learned counsel for Respondent No, 2 in Cr, M. 992-M/08 was not available. Hence the case was adjourned for today. Today Asif Iqbal complainant of complaint case has appeared and he states that his learned counsel has completed his arguments, so only the record is to be seen by this Court and same may be decided after perusal of record.
9. The record was perused with the able assistance of the learned counsel for the parties.
10. Firstly I take up the case bearing Cr.M.992-M/08 whereby petitioner Asif Iqbal etc. have sought acquittal in case FIR No, 56/06 dated 18.5.2006 offence under Sections 302/148/149/109 PPC mentioned above.
11. After hearing the learned counsel for the parties and going through the record I have found that it is very much available in the FIR that six nominated along with 10 other unknown accused, were saddled with the responsibility of double murder of Zahid Hussain and one Muhammad Hasnain in attempt to take possession of land which is subject matter of the above mentioned FIR. The evidence on record is post mortem reports of both the above mentioned deceased, statements of eye witnesses, Abdul Rehman complainant as well as Kashif Jalal and Abdul Karim. The other piece of evidence is recovery of blood stained earth from the spot and then the recovery of 105 empties including missed cartridges collected by the I.O. from the spot and recoveries of 12- bor guns during the investigation at the behest of seven accused/petitioner namely Asif Iqbal, Shakeel, Muhammad Ahmad, Muhammad Feroze, Gul Sher, Sayed Ameer and Muhammad Afzal, is available on record and powers under Section 561-A Cr.P.0 are neither akin to appellate jurisdiction nor to revisional jurisdiction. It is special extra ordinary and inherent jurisdiction. Its main aim and object is to save the parties, from the agony of, mock or vindictive trial and abuse of process of Court, where there is no chance of conviction and this power should not be used or utilized to interrupt or divert the powers of ordinary Courts of criminal trial when prima-facie evidence against the accused is available as the appreciation of evidence is absolute job of learned trial Court. Hence in the presence of above quoted evidence, I do not see any merits in petition bearing Cr. M. No, 992-M/08 titled Asif Iqbal and nine others Versus The State, etc. and the same is dismissed.
12. As far as Cr.Mr. 16-Q/08 titled Maulana Muhammad Akram Awan and 6 others Vs. The State, is concerned, the complaint filed against them by Asif Iqbal was under Sections 302/324/440/342/511/ 365/148/149/382/468 and 471 PPC with the allegations that they committed murder of their two party men in an attempt to take possession of the land and also injured two goats which they also took away when they left the scene of occurrence. The impugned order would show that petitioners Maulana Muhammad Akram Awan and 6 others had been summoned to face trial under Sections 324/440/342/148/149 and 109 PPC only vide order dated 31.7.2007 meaning thereby the said petitioners are no more accused under Sections 302/511/365/382/468 and 471 PPC as far as the double murder case is concerned and said order dated 31.7.2007 passed by the learned Addl. Sessions Judge, Khushab has never been challenged by the complainant Asif Iqbal before any forum despite the lapse of one year and two months. As far as the summoning of petitioners under Section 324 PPC is concerned, the only allegation against them was that they injured two goats out of which one was killed but both the goats were taken away by six petitioners.
There is nothing on record that any of the goats was taken into possession by the police during the investigation or any post mortem examination was held or any blood was taken into possession where the said goats were injured and similarly no weapon of offence was recovered at the instance of any of the seven petitioners. Even at belated stage of nine months the private complaint had been filed by Asif Iqbal who is real brother of one Muhammad Sohail who is principal accused of FIR in double murder case and is still P.O. The other accused of FIR, Muhammad Arshad who has also been attributed fatal injury to deceased Muhammad Hasnain is also still P.O. and the present private complaint was filed after a delay of nine months and there is no specific role against any of the petitioners/accused of private complaint. There is no cavil with the legal proposition that if prima facie the offence had been committed, the ordinary Court of trial, should not be deflected through the exercise of powers under Section 561-A Cr.P.0 or under Article 199 of the Constitution of Islamic Republic of Pakistan as determination of the correctness or falsity of the allegations levelled against an accused and the consequent determination of the guilt or innocence of such an accused person and ultimate conclusion regarding conviction or acquittal was an obligation on the Court prescribed by the Code of Criminal Procedure for the purpose, on the basis of legal evidence led at the trial after a proper opportunity to both the parties to plead their causes and powers under Section 561-A Cr.P.O should be exercised in absolute ' extra-ordinary circumstances of the case but at the same time it is the duty of the Court to see, the accused who is facing the agony of the trial whether there is a legal evidence available on record to connect him with the alleged commission of crime? whether the trial which he is facing is mock or vindictive from the face of it or there is any chance of conviction if the trial is allowed to be concluded?
13. I am of the considered view that trial of the petitioners of Cr. Misc. No, 16-Q/08 Maulana Muhammad Akram Awan and 6 others, in complaint case (titled Asif lqbal Vs. Maulana M. Akram and 6 others) before the learned ASJ Khushab is vindictive, without any evidence on record and proceedings before the Court would be mere an abuse of the process of Court to perpetuate their agony and if there had been an iota of truth in the version of the complainant, he must have reported the matter promptly to the police, the learned Area Magistrate, Justice of Peace or approach this Court but after a delay of nine months he filed the private complaint wherein only allegation against the petitioners was that due to their indiscriminate firing only two goats were injured, out of which one died, but both goats were also taken away by the petitioners and there is no evidence to substantiate that allegation.
14. In view of above, Cr. Misc. No, 16-Q/08 is allowed and the impugned orders dated 31.7.2007 and 6.8.2008 passed by the learned Sessions Judge, Khushab; are set aside and consequently, proceedings in complaint case titled 'Asif lqbal versus Maulana Muhammad Akram Awan etc" are hereby quashed.
15. In view of what has been discussed above, Cr.M.992-M/08 is dismissed whereas Cr. M. No, 16- Q/08 is allowed.
16.Any observation made above by this Court shall not prejudice the case of either party before the learned trial Court in FIR No, 56/06 dated 18.5.2006 registered with Police Station Naushera District Khushab and any evidence produced by the parties during the trial shall be considered on its own merits.