This revision petition is directed against the order of learned Additional Sessions Judge, Rawalpindi dated 5th December, 1979 whereby the complaint filed by Rahmat. Ali was dismissed.
2 The facts leading to the filing of revision petition are as under:-- On 30th June, 1977, a case under section 307/34, P.P.C., was registered on the written complaint of Nazak Hussain, which he delivered to Farman Ali S. H. O., in Civil Hospital. It was alleged by Nazak Hussain that Muhammad Nawaz armed with 12. Bore gun, Imtiaz armed with 7 mm, rifle and Muhammad Afzal armed with knife attempted on his life and also attempted on the life of Muhammad Hanif. He disclosed in the written complaint that Muhammad Nawaz fired a gun shot at Muhammad Hanif, which hit him on the abdomen, and Imtiaz fired a rifle shot which hit Muhammad Hanif on his left arm. About his own injuries, he disclosed that Muhammad Afzal, Nawaz and Imtiaz injured him with knife, gun and rifle. The motive was stated to be a dispute between Nawaz accused and Saeedullah over the land. The second motive asserted in the complaint was that prior to the occurrence, Muhammad Hanif and Saeedullah had quarrelled with Nawaz and Imtiaz accused but due to the timely intervention of Inayatullah, no untoward incident happened. Muhammad Hanif died on account of his injuries on 27th July, 1977 and offence under section 302, P.P.C. Was added. The case was investigated by the S. H. O., D. S. P./S. D. P. O.
Muhammad Nawaz and Muhammad Afzal were found innocent but in view of the ocular evidence, challan was submitted against them also.
Imtiaz Ali was arrested in the above-mentioned case on 4July, 1977. He was produced before the Duty Magistrate on 5July, 1977. An application was submitted by Imtiaz Ali through his father Allah Ditta for his medical examination. It was clearly mentioned in the said application that Imtiaz Alith th was injured during the fight Imtiaz Ali was not medically examined and he addressed an application to D S P Headquarter, Incharge Police Station, Sadar Bairuni, Rawalpindi, on 7July, 1977. -He disclosed his grievance in the said application that on 30th June, 1977 he had met Incharge Police Station before the arrival of the opposite-party and narrated the facts to him making a request for the registration of the case, but the Incharge made him sit at the Police Station with an assurance that the case would be registered. He further stated in the application that on the transfer of the Incharge Police Station, he requested the successor to register the case but the successor declined on the ground that his predecessor should have registered the case and also should have got him medically examined. He made another application that S. H. O. Be directed to register the case on his statement. This application was marked to S. H. O. Sadar Bairuni, Rawalpindi for necessary action and report. No case was, registered as a result of his efforts, Compelled by the circumstances, Imtiaz, Ali filed Writ Petition No. 2609 of 1977 under Article, 199 of the Constitution of the Islamic Republic of Pakistan, 1973, 'with a prayer that S. H. O. Be directed to register a case against respondents Nos. 2 to 8. The petition was disposed of by this Court on 26th September, 1977, S. H. O. Police Station Sadar Bairuni, Rawalpindi was directed to register the case at the instance of Imtiaz Ali. This direction was complied with and F. I. R. No. 68 was registered on 28th September, 1977. The relatives of Imtiaz Ali were not satisfied with the investigation of the case.
It was after the registration of the case that Imtiaz Ali was got medically examined on 28September, 1977 at 3-0 p. m. X-Ray was advised. Fracture of the lower ends of lower humorous bone was detected and the doctor opined that the said injury was grievous in nature. The police moved for the cancellation of case F I R No. 68, which had been registered on the statement of Imtiaz Ali.
4. Rahmat Ali filed a complaint on 19th April, 1978, in the Court of Ilaqa Magistrate against Saeedullah and others. This complaint was forwarded to the Sessions Judge who marked it to the learned Additional Sessions Judge. Rahmat Ali complainant produced Muhammad Ashraf, Abdul Aziz, Khizar Hayat dispenser, Abdul Ghafoor Khan and Dr. Muhammad Siddique in support of his complaint besides his own statement. The said complaint was dismissed on the ground that there was a delay of two years, which bad not been explained satisfactorily, that the reading of the complaint made it clear that there was not an iota of truth in it and no body could believe that Imtiaz Ali allowed Muhammad Ashraf to take his rifle and Muhammad Ashraf could not be a fool to kill his own party man.
5. The learned counsel for the petitioner contended that the learned Additional Sessions Judge clearly erred in holding that there was an unexplained delay of two years. He further submitted that sufficient evidence had been produced and a prima facie case had been made out against the respondents; that there were two cross versions of the same occurrence and according to the various authorities, the cross-cases were to be tried separately and disposed of by the same Judge at the same time, but on account of dismissal of the complaint, the case of Imtiaz Ali etc. Had been prejudiced.
6. It was contended by the learned counsel for the respondents that there was an inordinate delay in filing the complaint and for that reason the complaint had been dismissed. It was also pointed out that the impugned order was not perverse.
7. F. I. R. No. 47 had been recorded on 30June, 1977 on the statement of Nazak Hussain against Imtiaz Ali etc. Imtiaz Ali was arrested on 4July, 1977. An application was made to the Duty Magistrate for the medical examination, but he was not got medically examined at that time. It was disclosed In the said application that Imtiaz Ali was injured during the fight. The application was addressed to the D. S. P. On 7July, 1977. Imtiaz Ali mentioned in the said application that he contacted the S. H. O. On 30June, 1977 for the registration of the case, and he had met the S. H. O.
Before arrival of the other party, but the case was not registered. The police was reluctant toth th th th th th register the case at the instance of Imtiaz Ali. Ultimately Imtiaz Ali was compelled to file a Writ Petition in September, 1977. This Court gave direction to the S. H. O., on 26th September, 1977 for the registration of the case, as a result of which, case F. I. R. No. 68 was registered on 28th September, 1977. It was after the registration of the ease that Imtiaz Ali was sent to the doctor for medical examination. The Police moved in October for the cancellation of the case. Imtiaz Ali was in jail and was not aware of the result of the investigation. He sensed that the Police was not inclined to put up the challan and consequently Rahmat Ali filed the present complaint. The learned Additional Sessions Judge took the view that there was a delay of about 2 years in fling the complaint and the delay had not been explained satisfactorily. It was against the record. The occurrence had taken place on 30th June, 1977 whereas the complaint was filed on 19April, 1978. The delay in filing the complaint comes to nearly 10 months. It was completely ignored that right from the beginning Imtiaz Ali had been making attempt for the registration of the case and the case was not registered. Ultimately, they were compelled to file a Writ Petition and under the order of this Court the case was registered on 28June, 1977. Imtiaz Ali was in fail. He could not know about the result of the case, which had been registered; Under these circumstances, I hold that the learned Additional Sessions Judge took an erroneous view that there was a delay of 2 years and the delay had not been explained satisfactorily.
There were two versions of the same occurrence. It has been repeatedly held that cross cases should be tried separately and disposed of at the same time by the same Court. This aspect of the matter had been ignored by the learned Additional Sessions Judge while dismissing the complaint.
Imtiaz Ali had not been examined and it was for Imtiaz Ali to explain as to how Muhammad Ashraf took his rifle and under what circumstances he killed his own party man. Without his examination, the learned Additional Sessions Judge took the view that the prosecution version was not reliable.
After having considered all the material on record, I accept this petition and set aside the impugned order. The case is sent back to the learned Sessions Judge, who may proceed with the complaint from the stage it was dismissed. It is further directed that the learned Sessions Judge shall withdraw the cross case against Imtiaz All etc. From the Court of learned Additional Sessions Judge and try the said case himself.