' CH. MUHAMMAD YOUNIS, J.---This criminal revision petition has been filed against the order dated 17-7-2010 passed by Mr. Shahbaz Ali Paracha, Additional Sessions Judge, Kabirwala whereby he dismissed the private complaint titled "Muhammad Ijaz v. Zulfiqar and others" under sections 302/109/148/149, P.P.C.
2. The learned counsel contends that on 13-7-2009 Allah Ditta, brother of the complainant was murdered by the accused. Zulfiqar and Muhammad Nawaz and others F.I.R. No,271 of 2009 was lodged under sections 302/34, P.P.C. But the police had failed to conduct the investigation of this case fairly and honestly. Rather the petitioner/ complainant was pressurized to enter into compromise and a cross version of Haji Waryam was also recorded dishonestly. Inspite of the recovery having been effected from Zulfiqar and Muhammad Nawaz the weapons were not shown to be recovered and the police kept the complainant in dark. After getting huge amount as illegal gratification the police declared the real culprits i.e, Zulfiqar and Nawaz to be innocent and they rather introduced two unconcerned persons, namely, Afzal and Fakhar Abbas inspite of the fact that they were not the accused of this case.
3. Feeling aggrieved of the defective investigation of the police an application for change of investigation was moved by the complainant to the Additional Inspector General of Police, Punjab and meanwhile he filed a private compliant on 17-10-2009. After recording the statement of the complainant the learned Additional Sessions Judge, Kabirwala referred the matter to the Judicial Magistrate, Muhammad Wajid Hussain Mughal for conducting an inquiry under section 202, Cr.P.C.
The learned Judicial Magistrate conducted the inquiry and observed that prima facie the respondents were found to be involved in the commission of offence and case was made out against them but ignoring this report the learned Additional Sessions Judge summoned the record of the said case and dismissed the compliant on the ground that the version of the complainant in the private complaint and F.I.R. Was different. He also observed that the complainant was unable to prove that the police had received any illegal gratification to extend benefit to the accused persons. The said order of the learned Additional Sessions Judge has been assailed through this criminal revision petition on the grounds that the impugned order was result of misconception, non-reading and misreading of evidence and was not sustainable in the eye of law, because in presence of preliminary evidence produced by the complainant there was no justification for the learned Additional Sessions Judge to dismiss the private compliant without summoning the accused persons.
4. The learned counsel has referred to 2008 SCM R 853 (Munawar Ali v. Ali Dost and others), 2007 PCr.L.1 372 (Larkana), (Ahmed Ali v. The State) and 2003 PCr.LJ 1442 (Muhammad Zulfiqar v.
Muhammad Aslam and 7 others) (Multan Bench, Multan).
5. The DPP has vehemently opposed the revision petition and argued that the criminal revision being devoid of any force is liable to be dismissed.
6. I have considered the arguments advanced from both the sides and gone through the documents available on the record.
7. The question of law involved in the instant revision petition is as to whether the learned trial Court could dismiss the complaint on the basis of the defects in the investigation in the State case or the learned Additional Sessions Judge should have considered the statement of the complainant and cursory evidence of his witnesses supporting his version along with the inquiry report submitted by the learned Judicial Magistrate who conducted the inquiry under section 202, Cr.P.C. Under the orders of the trial Court?
8. Admittedly, the police had declared the accused, Zulfiqar and Muhammad Nawaz innocent in their investigation and substituted them with 2 other persons who were never nominated by the complainant. Due to this reason the petitioner felt aggrieved and filed a private compliant. The learned Additional Sessions Judge has not put any Court question to the complainant while recording his preliminary statement on 27-10-2009 in order to contradict him on any point.
Similarly, after referring the matter to the learned Judicial Magistrate the cursory statements of Nasir, Haq Nawaz and Mazhar were recorded. They were also not put any question by the learned Judicial Magistrate to clarify any point. After perusal of the preliminary evidence the learned Judicial Magistrate submitted the inquiry report under section 202, Cr.P.C. Deriving the conclusion that from the contents of this private complaint and statements of the witnesses prima facie the offences mentioned in the private compliant were made out against the accused. He forwarded the inquiry report to the learned Additional Sessions Judge but the accused were never summoned by the learned Additional Sessions Judge. Rather he based his findings and observations on the proceedings in the State case. It is evident on the record that the complainant was aggrieved of the defective investigation conducted by the police and he levelled serious allegations against the police for receiving illegal gratification to change the fate of the case, so the proceedings conducted by the police in the State case necessitated the filing of the private complaint. These proceedings have been disputed by the complainant having not been conducted by the police fairly and honestly. The learned Additional Sessions Judge erred in law by summoning the record of the State case and dismissing the private compliant of the petitioner relying on the proceedings conducted therein by the police. He could not brush aside A the cursory evidence of the complaint and rely on the proceedings of State case, as the same were disputed ones and on account of defective' investigation conducted by the police complainant was constrained to file a private compliant. It was obligatory upon the learned Additional Sessions Judge to make a tentative assessm ent of the evidence produced by the complainant in support of his private compliant. He could not find faults with the private complaint by comparing the same with the police proceedings, which were never accepted by the complainant to be fair and honest. The learned Additional Sessions Judge must have confined himself to the cursory evidence produced by the complainant and he had to form his opinion regarding the commission of any offence by the accused from the evidence produced before him or the learned Judicial Magistrate in the private compliant. It could not be dismissed out rightly for want of incriminating material when it was supported by the statement of the complainant as well as postmortem report and the statement of three other witnesses. I rely on 2008 SCM R 853 Munawar Ali v. Ali Dost and others) on this point.
As regards the delay in lodging the private compliant it could not be held to be fatal in view of the facts and circumstances of the case as was observed in 2003 PCr.LJ 1442 (Muhammad Zulfiqar v.
Muhammad Aslam and 7 others) by this Court. It' would not be incongruous to mention here that the petition for change of investigation was also pending before the competent forum at the time of dismissal of the complaint. The learned trial Court on one hand dismissed the compliant whereas he is proceeding with the State case in which the supplementary challan is yet to be submitted after conducting the reinvestigation, if ordered by the Board.
9. In the light of the above discussion the impugned order is not sustainable in the eye of law. It has caused grave miscarriage of justice and caused serious prejudice to the rights of the complainant.
The revision petition is thus accepted and the impugned order is set aside. The complaint is remanded to the trial Court for fresh decision. He is directed to make tentative assessment of the evidence recorded in the complaint and also take into consideration the report of the Judicial Magistrate, who conducted the inquiry under section 202, Cr.P.C. The learned Additional Sessions Judge shall not be influenced by the proceedings of the State case and he shall confine himself to the cursory evidence produced in the private compliant. He shall pass a fresh order in the light of the above observations of this Court and then proceed with the private complaint strictly in accordance with law. The C.M. No,1132 of 2010 is also disposed of.