' SYED SAKHI HUSSAIN BUKHARI, J.--- This appeal by leave of this Court is directed against the judgment dated 30-9-2008 passed by learned Lahore High Court, Lahore whereby Criminal Misc.
No,16-Q of 2008 brought by respondents Nos. 2 to 8 was accepted, orders dated 31-7-2007 and 6- 8-2008 passed by learned Sessions Judge, Khushab were set aside and proceedings in complaint filed by Asif Iqbal, appellant were quashed.
2. The brief facts of the case have been given in paras Nos. 4 and 5 of the impugned judgment which read as under:- "4. The brief facts of the case as per F.I.R. Are that on 18-5-2006 at about 5-15 a.m. Muhammad Hussain and Zahid Husain were going from the dera of complainant to land situated in Gabair Wala for watering. When they reached near "Barsati Nola" Khabeki at about 6-00 a.m., suddenly accused persons, Sohail, Ejaz Ayub, Arshad, Khasif 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. F.I.R. 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 v. 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 Rs,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 fire- arms 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, P.P.C. 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 F.I.R.
No, 56 of 2006 registered with Police Station Naushera. The said order was challenged before this Court through Criminal Revision. No,315 of 2007 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, Khushab recorded the statements of four witnesses namely Asif Iqbal (P.W.1), Muhammad Habib' (P.W.2), Fateh Muhammad (P.W.3) and Gul Muhammad (P.W.4) who summoned the accused (petitioners of Criminal Miscellaneous No, 16-Q of 2008) Maulana Muhammad Akram Awan and 6 others to face trial only under sections 324/440/342/148/149/109, P P. C . 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.C. Which was dismissed through the consolidated order mentioned above."
' The respondents challenged the order dated 6-8-2008 in aforesaid petition (Criminal Miscellaneous No, 16-Q of 2008) which was accepted vide impugned judgment and proceedings in complaint brought by appellant were accordingly quashed. Hence this appeal.
3. We have heard the arguments and perused the record. As mentioned above, case F.I.R. No, 56 dated 18-5-2006 under sections 302/109/148/149, P.P.C. Was registered against Asif Iqbal etc. And after investigation they were challaned. The appellant also filed private complaint against the respondents. After recording preliminary evidence, vide order dated 31-7-2007 learned Session Judge summoned the respondents to face trial. The respondents appeared before trial Court and submitted application under section 265-K, Cr.P.C. Which was rejected vide order dated 6-8-2008.
The respondents challenged the said orders in the aforesaid petition (Criminal Miscellaneous No,16-Q of 2008) which was accepted vide impugned judgment and proceedings of the complaint case brought by appellant were quashed. As mentioned above, the appellant had filed complaint: regarding the same occurrence and learned Sessions Judge had summoned the respondents to face trial after recording preliminary evidence. The impugned judgment shows that learned High Court has given the findings on the merits despite the fact that no evidence has been recorded so far as at the relevant time trial had not commenced. We find that in this manner appellant has been condemned un-heard. Moreover law favours the disposal of cases on merits. It is in the interest of justice that both the parties be provided opportunity to prove their versions by producing evidence. So we find that impugned judgment is not , sustainable 'in the eyes of law. As such this appeal is accepted and impugned judgment is accordingly set aside. Learned counsel for the respondents submits that in the State case (F.I.R. No, 56 dated 18-5-2006) evidence has been recorded, therefore, learned trial court is directed to dispose of the complaint brought by appellant in accordance with law and on merits, expeditiously.