' SAYYED MAZAHAR ALI AKBAR. NAQVI, J.---By means of instant criminal revision petition filed in terms of sections 435/436, Cr.P.C. Read with section 439, Cr.P.C. And section 561-A, Cr.P.C.
Muhammad Azam/petitioner has assailed the vires of impugned order dated 27-11-2008 passed by learned Additional Sessions Judge, Kharian; whereby the learned trial Court while dismissing the complaint filed by the petitioner under sections 302, 324, 148, 149, P.P.C., against the accused/ respondents Nos.1 to 6, had declined to summon them.
2. Facts of the case succinctly required for determination of the petition in hand are that Munawar Hussain son of Muhammad Khan, brother of the complainant lodged case F.I.R. No.183, dated 25-5- 2011, offence under sections 302, 324, 148, 149, P.P.C., at Police Station Dinga, District Gujrat thereby involving the accused/respondents Nos. 1 to 6 as accused along with four unknown accused persons; wherein all the accused disappeared and after initiating proceedings under section 88 of the Criminal Procedure Code, the Investigating Officer submitted challan against them under section 512, Cr.P.C. Subsequently Amjad Hussain/ respondent was arrested, whereas, the other respondents, who were declared absconders in the aforesaid case and their challan was pending under section 512, Cr.P.C, applied for their pre-arrest bail, which was subsequently withdrawn on the ground that they were declared innocent by the police. Challan against Amjad Hussain was submitted along with other absconding respondents and the present petitioner, who is eye- witness of the occurrence and brother of the complainant of F.I.R. (having proceeded abroad in connection with his livelihood) being dissatisfied with the findings of the Investigating Officer filed complaint, however, the police reported that the respondents had again absconded. During the proceedings of complaint cursory statements of the complainant and other prosecution witnesses were recorded and the learned Additional Sessions Judge, Kharian, vide order dated 27-11-2008 dismissed the complaint mainly on account of two reasons:--
(i) firstly that the respondents were already absconders; and
(ii) secondly contradiction in the cursory statements of the P.Ws. With the averments of F.I.R., which is under challenge before this Court.
3. Learned counsel for the petitioner while addressing the Court submitted that the impugned order has been passed in a stereotype manner without adverting to the real facts and circumstances of the case and the material available on record. Learned counsel while referring to the statements of the P.Ws. Recorded at the time of cursory statements contended that the same are in line with the averments of the crime report, however, the learned trial Court committed grave misreading and non-reading of material available on record. It was further argued that the Investigating Officer was in league with the accused/respondents, therefore, he declared Taimoor Khan alias Muhammad Arshad, Shafqat Mahmood, Akram and Mian Khan/respondents as innocent, regarding which Mr. Mazhar Hussain Choudhry, learned Additional Sessions Judge, Kharian/predecessor of learned trial Court had written letter to the Deputy Inspector-General of Police, Gujranwala Range on 28-10-2005; wherein he had shown the conduct of the Investigating Officer as biased and malicious thereby requiring disciplinary proceedings against the S.H.O./ Investigating Officer, which compelled the petitioner to file complaint. The learned trial Court while dismissing the complaint at the preliminary stage made absconsion of the respondents and malicious investigation very basis when co-accused Amjad Hussain/respondent was already facing trial on the same material and even the representation of the respondent was allowed by the learned trial Court without moral or legal justification.
4. Learned Deputy Prosecutor-General supported the arguments of learned counsel for the petitioner.
5. Contrarily, learned counsel representing respondents Nos.1, 3 and 6 vehemently opposed the contentions raised by learned counsel for the petitioner with the submissions that the impugned order has been passed in consonance with the material available on file and the law on the subject. Learned counsel contended that the learned trial Court was well justified in holding that the complaint was filed in order to delay the proceedings in the challan case pending against Amjad Hussain/respondent. Learned counsel prayed for dismissal of the instant petition.
6. I have given my , anxious consideration to the arguments advanced by learned counsel for the petitioner, learned counsel representing respondents Nos.1, 3, 4, and 6, as well as, learned Deputy Prosecutor-General and gone through the record available on file.
7. While declining to summon the respondents and dismissing the complaint against the 'respondents, the learned trial Court had mainly focused on two points, firstly contradiction in the cursory statements and other material adduced by the prosecution witnesses with that of contents of the- crime report and that at belated stage it was not justified to summon the respondents when the crime report was lodged way back in 2001.
' As far as findings of the learned trial Court with regard to contradiction in the cursory statement of the petitioner/ complainant and contents of the crime report are concerned, the same are itself belied from the record available on file. Perusal of contents of the complaint as well as cursory statements and other material adduced by the witnesses of the petitioner/ complainant reflects that those are in line with the story advanced in the crime report lodged by Munawar Hussain soon after the occurrence. Hence., I am constrained to observe thatthe learned Additional Sessions Judge while giving finding on this score has committed grave misreading and non-reading of material available on record, which in ordinary course of law, is not expected from such a senior judicial officer (already dismissed from service on corruption charges) to act in such a casual manner.
8. In the instant case admittedly after lodging of F.I.R. No.183, dated 25-5-2011, offence under, sections 302, 324, 148, 149,. P.P.C., at Police Station Dinga, District Gujrat, the accused had absconded and after initiating proceedings under sections 87/88, Cr.P.C. They were declared proclaimed offenders and subsequently on the arrest of Amjad Hussain/respondent No.6, the other respondents got pre-arrest bail and subsequently withdrew the same on account of having been declared innocent and when the petitioner came to know about this fact, he filed complaint; wherein the respondents did not appear rather the police reported that they are fugitive from law.
Hence, in this view the learned trial Court was, not justified in dismissing the complaint for the reason that the matter was old one and the respondents were already declared proclaimed offenders and findings of the learned trial Court on this score are contrary to scheme of law on the subject. It is the essence of Code of Criminal Procedure to adopt all coercive measures to procure the attendance of a witness to make statement and what to talk about an accused person involved in a heinous offence. Moreover, finding of learned trial Court that by issuing process against the respondents it may create delay in disposal of trial against Amjad Hussain/respondent No.6, being against the norms of criminal justice, and the same is not sustainable in the eyes of law. Even otherwise for issuance of process in a complaint only tentative assessment is to be made to the extent whether prima facie case is made out or not from the facts and circumstances and deeper appreciation of statements of prosecution witnesses and the material at such a preliminary stage is uncalled for.
9. For the foregoing reasons, while allowing the instant petition, the impugned order dated 27-11- 2008 passed by learned Additional Sessions Judge is set aside as a result whereof the complaint filed by the petitioner shall be deemed to be pending before the learned trial Court. The parties are directed to appear before the learned trial Court on 22-9-2012.
10. Before parting with the judgment, this Court has observed that in the impugned order dated 27- 11-2008, the learned Additional Sessions Judge Kharian (Mr. Nazir Ahmad Langah) has given finding in utter disregard to the facts floating on the record; which compelled the petitioner to file the instant petition and this Court was seized with the lis since 2009. It creates serious doubts about the authenticity of order impugned which has already been ordered to be set aside.
11. Office shall return record of the case to the learned trial Court, forthwith. As the matter is old one, learned trial Court is directed to conclude the trial within three months from the receipt of this order to it.