Dost Muhammad, petitioner-complainant filed private complaint under Sections 324/365/337- A(ii)/337-F/148/149 PPC before the Learned Judicial Magistrate Section 30, Burewala, District Vehari mentioning the facts that on 8.8.2001 his nephew Waqar S/o Sabir Hussain and brother Irshad at 7.30 a.m. were going for tuition purposes when they reached near Bhana Mochi suddenly accused Muhammad Hanif S/o Ghulam Ali armed with Sota, Amanat Ali S/o Muhammad Hanif armed with .12 bore pistol, Muhammad. Sharif S/o Jam Muhammad armed with .12 double barrel gun, Muhammad Iqbal S/o Hakim Ali armed with .12 bore pistol, Basharat Ali S/o Hakim Ali armed with Sota, Ghulam Rasool S/o Faiz armed with rifle and Mehboob Ali S/o Yasin armed with .12 bore gun who were already present there stopped them. Basharat Ali and Muhammad Iqbal grappled them while Amanat Ali fired with .12 bore pistol hitting complainant's nephew Zulifqar on his right leg who fell down. In order to save him Zafar S/o Jabar Hussain fell over him. The petitioner-complainant alleged that the aforesaid accused tried to abduct complainant's nephew and to lift to their land as they wanted to kill him, The other accused had been raising Lalkaras and they gave kicks and fists blows to Zafar due to which his right hand become injured. On their hue and cry Zafar PW- reached at the spot he too received sota blow on his head at the hands of Muhammad Hanif. In the meanwhile complainant's brother Mushtaq also reached at the place of occurrence who made fires in the air due to which accused persons left the injured persons. Besides Zafar, Mushtaq and the complainant this occurrence was also witnessed by Muhammad Ali and Shah Muhammad, PW-s. The motive for the occurrence was mentioned that previously accused-respondents' side lodged a report against the petitioner for theft of a T.V. in which the complainant's party were declared innocent and the case was subsequently cancelled. Due to that reason as well as rivalry on political side the instant occurrence has been committed by the accused-respondents.
2. It is further mentioned in the complaint that Zulifqar and Zafar got medically examined by the police from Tehsil Headquarters Hospital, Burewala but the accused party being influential they got registered FIR No, 146 dated 8.8.2001 at Police Station Saddar Burewala under Section 324/148/149 PPC against the petitioner and others.
3. That subsequently petitioner-complainant's cross-version was recorded by the I.O. but it was subsequently disbelieved. Hence, the private complaint.
4. Learned trial Magistrate recorded the preliminary statements of the petitioner-complainant and his witnesses including Zulifqar (CW2), Muhammad Zafar (CW-3), Muhammad Irshad (CW-4) and Muhammad Ali (CW-5). The complainant-petitioner while placing on record copies of MLC of Dost Muhammad and Muhammad Zafar as Exh.PA and Exh.PB closed his evidence. The learned trial Magistrate vide order dated 19.7.2006 did not find any ground for summoning of the respondents as accused and dismissed the complaint of the petitioner.
5. Feeling aggrieved the petitioner-complainant filed criminal revision which was heard and decided by the learned Additional Sessions Judge, Burewala who also dismissed the same vide impugned judgment dated 12.5.2009. Now the complainant-petitioner through this criminal miscellaneous under Section 561-A Cr.P.C. has sought quashment of both the orders passed by the learned Courts below as illegal and without any lawful justification.
6. Learned counsel for the petitioner-complainant argued that if the cursory evidence recorded by the learned trial Magistrate is seen the petitioner including Zulifqar and Muhammad Zafar the two injured witnesses have corroborated the statement of the petitioner and further corroboration is also present on record in the shape of statements of Muhammad Ali and Muhammad Irshad as well as the MLCs wherein the medical office has opined the nature of the injuries in case of Muhammad Zafar as "Ghair Jaifah Damiyah" and Injury No, 1 on the top of the head of Zulifqar as "Shajjah-i Mudihah" and in the case of Zulifqar it was declared as fire-arm injury. Learned counsel argued that while dismissing the complaint the learned trial Magistrate presumed certain facts which were not present on record. It was presumed that the instant private complaint was lodged as a counter blast of the previous litigation at a belated stage as well as cross version of the case FIR No, 146/2001 lodged by the respondent's side. Learned counsel argued that delay as well as defence version at the stage of summoning of accused-respondents under Section 203 read with Section 204 Cr.P.C. is immaterial. It is settled law that a Magistrate at this stage should only look into the material available on record and if a prima facie case is made out then he should summon the persons against whom the complaint is lodged. The defence version if taken into consideration at this stage is a material illegality committed by the learned trial Magistrate.
Learned counsel further argued that same illegality was further committed by the learned revisional Court and that extraneous matters other than the present on record were taken into consideration. While relying upon Noor Muhammad Vs The State and others (PLD 2007 S.0 9), Muhammad Ajmal Vs Ghulam Baseer (1988 P.Cr.L.J 1130), Zulfiqar and 8 others Vs Nazir Ahmad and another (2006 P.Cr.L.J 606). Noora Vs Munawar Iqbal etc. (1997 Cr.L.J. 766) and Riaz Ahmad Vs The Additional Sessions Judge Gujrat and another (1995 P.Cr.L.J 14) it was prayed that the impugned judgment passed by the learned revisional Court whereby the order passed by the learned trial Magistrate was upheld, be quashed as it was passed without any lawful justification being contrary to the law and facts of the case.
7. On the other hand learned counsel for Respondents No, 1 to 7 has vehemently opposed this petition on the grounds that admittedly cross version was lodged by the petitioner before the police during investigation of the case lodged by respondents' party and their cross version after investigation was found without any substance; that the petitioner kept quiet for about three years and when a case against them in which they are accused reached at the last stage the petitioner's party just to prolong the agony of the trial he moved this private complaint; that both the learned Courts below have taken into consideration these aspects and rightly dismissed the complaint of the petitioner Reliance has been placed on Mst. Nasreen Bibi Vs Abdul Waheed (2006 YLR 2934).
8. I have heard the learned counsel for the parties and perused the record.
9. Admittedly Muhammad Zafar s/o Jabar Hussain received a lacerated wound 5cm x 1cm and bone, exposed at the top of head and an abrasion 1cm x 1cm on the back of right little finger. Injury No, 2 has been declared as Ghayr Jaifah Damiyah and Injury No, 1 as Shajjah-i-Mudihah. Injury on the person of Zulifqar Ali s/o Sabir Hussain is declared as Ghayr Jaifah Damiyah and it was shown as fire-arm injury by the Medical Officer. The complainant-petitioner and his witnesses have fully supported his version as alleged in the complaint above mentioned. In these circumstances when prima facie offence as alleged is made out there was no option for the learned trial Court except summon the accused-respondents involved.
10. As far as the delay in filing the complaint is concerned in criminal matters it is immaterial Second aspect that it was a counter blast of the earlier case got lodged by respondents's side it can only be seen at the trial stage. At preliminary stage there was no defence available as accused were not present before the Court. Both the learned Courts below most probably on the basis of the statements of the petitioner and his witnesses that previously litigation between the parties was pending presumed that it was a case of counterblast or causing delay in disposal of the case pending against the petitioner's party is of no ground to dismiss the complaint. In these circumstances while relying upon Noor Muhammad Vs The State and others (PLD 2007 S.0 9) it is held that at the stage of summoning the accused under Section 204 Cr.P.C. the trial Court is only to confined itself to the material available on record and on the basis of material any offence is made out the accused-respondents be summoned. Resultantly, this petition is allowed. The orders dated 19.7.2006 and 12.5.2009 passed by the learned Magistrate Section 30, Burewala and the learned Additional Sessions Judge, respectively are hereby set aside and the matter is remanded to the trial Magistrate with a direction to pass appropriate order keeping in view the material available on record.