SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---By filing instant criminal revision petition under sections 435 and 439, Cr.P.C. The petitioner has assailed the legality of an order dated 14-2-2011 passed by the learned Addl. Sessions Judge, Jaranwala, District Faisalabad whereby the criminal complaint filed by the petitioner was dismissed.
2. The facts giving rise to the instant petition briefly stated are that on the complaint of the petitioner F.I.R. No,358 of 2008 was registered under sections 302, 337-J and 34, P.P.C. With Police Station Jaranwala, District Faisalabad with the allegation that on the information received by the complainant about death of his brother Muhammad Yousaf he visited the place of his residence and found the dead body containing bruises and blood was oozing from his nose. On query the respondents confessed their guilt of murdering Muhammad Yousaf by administering poison to him.
3. The Police after investigating the matter declared all the accused as innocent and recommended the case for cancellation when the petitioner being dissatisfied with the investigations of the Police prompted to lodge a private criminal complaint. The cancellation report was presented before the learned Judicial Magistrate for discharge of the accused but the learned Magistrate did not agree with the same vide order dated 28-11-2010, where-after the challan was submitted in the Court.
4. Learned trial Court after recording the summary evidence of the complainant proceeded to dismiss the complaint without summoning respondents on the ground that on the basis of summary evidence produced in the Court there would be no probability of the conviction of the accused persons. From the record, it appears that the trial Court proceeded to take cognizance upon the report submitted under section 173, Cr.P.C.
5. Learned counsel for the petitioner argued that in view of the rule laid down in Noor Elahi v. The State and 2 others (PLD 1966 SC 708) it was the duty of the learned trial Court to take proceedings in the complaint case and to stop further proceedings in the challan case but the learned trial Court had ignored the ratio of the cited case. He further argued that by not complying with the ratio of aforementioned case the trial Court had deprived the petitioner from his right to cross- examine the witnesses to be produced in the complaint case.
6. Learned counsel for the respondents while supporting the impugned order submitted that this Court has very little jurisdiction to reopen the question of fact in the revisional jurisdiction, therefore, the petition in hand is liable to be dismissed. In this connection, learned counsel has relied upon the cases of Syed Ghulam Murtaza v. Baber Akbar (1991 PCr.LJ 720) and Abdul Rehman and others v. The State (PLD 1983 SC 73).
7. I have considered the submissions made by the learned counsel for the parties and perused the record. The objection raised by the learned counsel for the respondents, after examining the case- law, is found to be without substance for the reason that the learned Court while passing the impugned order has committed grave illegality, which has vitiated the proceedings, therefore, this Court has jurisdiction under sections 435/439, Cr.P.C. To examine the impugned order. No doubt each and every order is not revisable but in the instant .Case the learned trial Court has violated the law as well as precedents to be adhered to in such situations. Further the cases referred to by the learned counsel for the respondents are distinguishable on facts as such with due reverence cannot be made applicable to the instant case.
8. Evidently the petitioner being dissatisfied with the investigations conducted by the Police in the case lodged by him had preferred a criminal complaint in which the Court proceeded to record summery evidence including the statement of the petitioner thug had applied its judicial mind to the facts of the case. After undertaking this exercise the learned trial Court had left with no option to dismiss the complaint on the basis that there was no probability of the conviction of the respondents. This exercise can be undertaken by the Court subsequently on the application of the accused persons- asserting that there was a remote chance of their conviction. By relying upon unproved summery evidence, the learned trial Court passed a verdict which does not enjoy sanction of law. This exercise of jurisdiction by the learned trial court can be termed as an illegal act of the Court for the reason that it was held in `Moor Elahi's case' (supra) and subsequently followed in the case of Mst. Haleema Bibi v. The State and another (2008 YLR 1144) that where a person is dissatisfied with the findings of the Police in respect of the allegations levelled in his crime report a criminal complaint lodged. Would be put to the trial while the proceedings in the challan case would be stopped till .The decision 'of the complaint case provided the same complainant had filed complaint against the same set of accused with same allegation as were mentioned by him in his F.I.R. Learned Court by not adopting legal procedure has exercised the jurisdiction with material irregularity, therefore, the impugned order is not sustainable in the eyes of law.
9. For the foregoing reasons, this petition is allowed and the impugned order dated 14-2-2011 passed by the learned Addl. Sessions Judge, Jaranwala, District Faisalabad is set aside and the learned trial court is directed to hold the trial of the complaint case and to stop the proceedings in the challan case till the decision of the complaint case, which challan case may be dealt with by prosecution in accordance with law.