Since none has appeared on behalf of Respondent No therefore, he is proceeded against ex-parte.
2. The petitioner Jan Muhammad, unfortunate father of deceased Qadir Bakhsh lodged FIR No, 1323/2006 dated 25.06.2006 for offences under Section 302/34 PPC at Police Station Kala District D.G. Khan. Since the police found the accused named therein as innocent, therefore, private complaint under Section 302, 34, 109 PPC was filed by him. Preliminary statement of the petitioner was recorded as PW-1 on 07.03.2007 by the learned Additional Session Judge D.G Khan, whereas in support of his contentions the petitioner produced PW-2 Ghulam Qader, PW-3 Atta Muhammad, PW-4 Ghulam Hussain, PW-5 Ashiq Hussain, PW-6 Muhammad Akram Sub-Inspector and PW-7 Doctor Abdul Qadir, who conducted the post-mortem of the deceased Ghulam Qasim son of the petitioner. Besides some documentary evidence corroborating the oral account was also submitted.
3. The learned trial Court/Additional Sessions Judge D.G. Khan did not consider it appropriate to even summon the accused/respondents and proceeded to dismiss the complaint vide order dated 02.07.2007. Aggrieved whereof present Constitutional petition has been preferred.
4. It is contended on behalf of the petitioner that sufficient evidence corroborating the version of the petitioner was produced before the learned trial Court. In addition thereto the testimony of PW- 7 Abdul Qadir Nadeem, Medical Officer, R.H.C, Shah Saddar Din, D.G.Khan, who conducted the post- mortem of the deceased, also supported the version of the petitioner. In any case it stood established that the deceased son of the petitioner died unnatural death. Further submits that the learned trial Court had only to examine whether prima facie case for issuing process is made out from the reading of preliminary evidence produced by the complainant or not and the Court has only to make tentative assessm ent of the material placed before it and that the petitioner had certainly made out prima facie case and thus it was incumbent upon the learned trial Court to have summoned the accused after issuing process and only thereafter if during the course of cross examination the testimony of PWs was shattered, could pass any adverse order. Reliance is placed upon Noor Muhammad vs. The State and others (PLD 2007 S.0 9) and Habibullah vs. The State and 4 others (2005 P.Cr.L.J 1742).
5. Conversely the learned counsel for Respondents No, 2 to 5 as well as the learned Deputy Prosecutor General support the impugned judgment and are atone in submitting that impugned order is perfectly legal and justified and that in revisional jurisdiction there is very limited scope of interference and has prayed that this petition may be dismissed.
6. I have heard the arguments of the learned counsel for the parties and have also gone through the record minutely.
7. The judgments cited by the learned for the petitioner to my mind are fully applicable to the facts and circumstances of the case. It has been observed in Noor Muhammad's case referred to supra that "The Court is not expected to examine the material minutely whereas at the stage of trial it appraise the evidence thoroughly and record its findings on the basis of such appraisal and that any benefit of doubt arising out of such inquiry should be given to the accused. It is not the stage were a material available on the record is assessed in depth but a prima facie case has to be made out to proceed further with the matter of issuance of the issuance of process is quite lighter on the complainant as compared to the burden of proof on prosecution at the trial of an offence as the prosecution is to prove the case beyond reasonable doubt and at the preliminary stage the complainant is not required to discharge above heavy burden of proof. The Court cannot overstretch the proceedings as to convert the preliminary inquiry or the averments made in the complaint to a stage of full-fledged trial of the case."
It has further been observed in the judgment referred to Supra that "mere summoning of an accused by the Court to answer the charges leveled against him does not tantamount to any infringement of any right of a person but rather an opportunity afforded to him to explain his position and that the possibility of accusation turning out to be false or frivolous at the trial should not overbear the Court from issuing the process if the material available, prima facie discloses the case against the accused. At this stage a protracted inquiry or full dress rehearsal of trial is not required."
8. I am of the considered view that the learned trial Court proceeded to pass the impugned order without proper application of mind. There is sufficient material available on record, prima facie connecting the respondent with it. The impugned order is arbitrary and suffers from serious illegality.
9. For what has been discussed above and while respectfully following the dictum laid down in afore-referred judgments this petition is allowed, impugned order dated 02.07.2007 passed by the learned Additional Session Judge D.G Khan is set aside. The complaint filed by the present petitioner shall be deemed to be pending before the learned trial Court who shall proceed in accordance with law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.