' MAZHAR IQBAL SIDHU, J.---Muhammad Anwar Ujali, along with four other petitioners have assailed the order dated 1512-2011 under section 439, Cr.P.C. Rendered by Ch. Alamgir Aurangzaib learned Addl: Sessions Judge, Lahore whereby the petitioners were summoned in a privately instituted complaint by Asghar Ali respondent under the procedure of section 200, Cr.P.C. Under sections 452, 109, 324, 337-H(2), 148, 149, 337-A(v), 337-A(i), 427, P.P.C. Read with an offence 156-C, of the Police Order 2002 on multi folded grounds.
2. Teresely the facts leading to the institution of incident recension petition are that petitioner Muhammad Anwar Ujali got a case registered vide FIR No,455 on 25-10-2008 at Police Station Manawan District Lahore under sections 452, 109, 302, 324, 34, P.P.C. Against Muhammad Javed, Irshad alias Shada, Abdul Ghafoor alias Dola, Muhammad Ashraf and Nisar Ahmad for the assassination of his son Muhammad Riaz. Partway incident, Abdul Ghafoor alias Dola one of the accused persons also sustained injuries at the hands of his accomplices as mentioned in the FIR.
3. Post mortem examination was performed on the dead body of Muhammad Riaz and medical examination of Abdul Ghafoor alias Dola was also conducted.
4 On the conclusion of investigation, report under section 173, Cr.P.C. Was prepared recommending the prosecution of the accused persons of the FIR.
5. During the investigation efforts were made to introduce cross version on the basis of injuries received by Abdul Ghafoor but were gone in vain.
6. Respondent Asghar Ali, then on 25-10-2008 filed a private criminal complaint against the petitioners and other police officials Fourteen in numbers under sections 148, 149, 337-11(2), 302, 454, 427, 337-A(i), 337-F(i), P.P.C. Along which offence under Articles 155 and 156 of the Police Order 2002.
7. After assessing the preliminary evidence the learned trail court vide its order dated 15-12-2009 dismissed the, complaint under section 203, Cr.P.C. With certain observations. The said order was assailed in, the revisional jurisdiction of this Court through criminal revision petition No,108/10, the same was allowed vide order dated 21-4-2011 and the impugned order was set aside. The case was remanded to the learned trial court for rehearing the arguments of the respondent and rewriting of the order in the complaint case in the light of the observations made in the revisional order strictly in accordance with law. Thereafter, the learned trial court vide impugned order 15-12-2011 summoned the petitioners to face the trial in the complaint case and the said order has now been assailed through the instant revision petition.
8. Learned counsel for the petitioners submits that Asghar Ali the respondent (complainant of the complaint case) has absolutely no connection with the occurrence; after about 18 months of the happening of incident he lodged a false private complaint and prior to that during the investigation cross version was found false; Abdul Ghafoor, the injured never brought the cross version either earlier or later up till now, notwithstanding, he was most aggrieved person and facing the murder charge; the complaint is based upon maliciousness; being aforethought of Asghar Ali, the same has been tried to be used as to destroy the case of Muhammad Riaz deceased; particularly in the instant revision petition that Muhammad Anwar Ujali, one of the petitioners is the complainant of the murder case of his son who has been involved along with others; the impugned order suffers from illegality for the reasons that earlier order dated 15-12-2009 whereby the learned trial court had dismissed the complaint under section 203, Cr,P.C. Was reasonable, just and the instant impugned order has actually been rendered being influenced of the order passed by this Court in the revisional jurisdiction otherwise, there was nothing new brought on the record by the respondent to further strengthen his case. Learned counsel has further submitted that it is the constitutional duty of the Court on account of its parental as well as visitorial jurisdiction to save the innocent persons from the malicious prosecution and if outwardly it floats on surface that proceedings in any case are based upon mala fide then these are liable to be quashed. Learned counsel has submitted that inordinate delay in filing the private complaint by itself is a factor which goes to the roots and alone is sufficient to extirpate it. Learned counsel submitted that respondent has no connection whatsoever with the murder of Muhammad Riaz but even then he has alleged in the complaint case offence under section 302, P.P.C. Along with other penal provisions. Learned counsel submits that now there has been brought radical changes in the prosecution of privately filed complaint cases and this Court can make interference if by going through the entire material that if the proceedings in the complaint case appear to be unjust, frivolous, malicious and based upon mala fide and no prospect of their success exists and to continue incessant the proceedings in the complaint case would abuse the process of law as well as Court; to allow the people to crawl in the corridors of the courts and to muzzle against floors of the Courts to seek justice as justice seeker 'without second thought this Court can pass an order in the interest of justice by declaring the proceedings illegal and can be quashed. Learned counsel has relied upon Muhammad Salim and others v. Fazal Mahmood and others (2001 SCM R 1738), Muhammad Fiaz Khan v. Ajmer Khan and another (2010 SCM R 105), Zafar and others v. Umer Hayat and others (2010 SCM R 1816) and has thus prayed for the acceptance of instant revision petition by setting aside the impugned order.
9. Learned D.P.G has found nolo contendere in the hearing of instant petition.
10. Learned counsel appearing for respondent has deftly opposed the submissions by arguing that delay in lodging the private complaint has been explained in the complaint itself as well in the statements of the witnesses recorded at the time of their cursory evidence; Abdul Ghafoor the injured on account of knife edged position could not file the private complaint; the respondent stepped in his shoes then filed a private complaint. Law goes not bar him to do so; preliminary evidence has gone unchallenged and the impugned order does not suffer from any incorrectness, illegality and impropriety. Lastly it has been submitted that under section 436, Cr.P.C. This Court can maximum direct the learned trial court to re-enquire into the matter instead of countermanding the instant order.
11. Arguments have been heard. Record perused.
12. Petitioner Muhammad Anwar Ujali got a case registered vide FIR mentioned above against Muhammad Javaid and 5 others including A Abdul Ghafoor alias Dola for the murder of his son Muhammad Riaz. During the same incident Abdul Ghafoor alias Dola also sustained injuries having been explained by the petitioner in the FIR. During investigation cross version introduced by the accused party was not succeeded, then at a belated stage by the delay of 18 months complaint was filed by Asghar Ali respondent which was dismissed by the learned trial court firstly vide its order dated 15-12-2009 on many grounds, primarily holding that it was a device being used by Asghar Ali respondent to frustrate the proceedings of murder case by maliciousness. The said order was set-aside by this Court in revisional jurisdiction as mentioned op.Cit then again, the learned trial court summoned the petitioners vide impugned order. The impugned order has been gone through. The view taken earlier by the learned trial court on 15-12-2009 whereby complaint was dismissed was not perverse or illegal and unlawful. After the acceptance of revision petition there was no material change brought on the record or any further evidence was introduced by the respondent to strengthen its complaint case. Belatedness in filing the complaint by itself is one of the major factors to notice the dubiousness or bona fide of the complaint. The august Supreme Court has held in the case of Muhammad Salim and 4 others v. Fazal Muhammad and another - (2001 SCM R 1738) head note (b) as under:--
(b) Penal Code (XLV of 1860)--- ---Ss. 302/34/148/149---Criminal Procedure Code (V of 1898), Ss.203 & 204---Case found fit for issuance of process by High court---Trial Court after having received the enquiry report did not find any sufficient ground for proceeding and consequently dismissed the complaint---High Court, however, in exercise of its revisional jurisdiction set aside the said order directing the Trial Court to proceed with the complaint in accordance with law Complainant undoubtedly had a right for redress of his grievance, but the same was subject to the condition that sufficient ground for issuance, of process was made out---Accused had already got registered the FIR regarding the occurrence and the complainant about 14 months thereafter had brought his counter-version through a private complaint---No sufficient ground was available for issuance of process against the accused in the complaint case---Impugned order passed by High Court was, therefore, not sustainable it law and the same was consequently set aside Appeal was allowed by Supreme Court accordingly."
' Similarly in another case reported as Zafar and others v. Umar Hayat and others (2010 SCM R 1816)
Head notes (d), (b) and (c), it was held:--
(d) Criminal Procedure Code (V of 1898)-------Ss.202, 203 & 204---Procedure to be adopted and considerations to be kept in mind in dealing with complaint---Trial Court must scrutinize the contents of the complaint, nature of allegations made therein, supporting material in support of accusation, object intended to be achieved, possibility of victimization and harassment, if any, to ensure itself that no innocent person against whom allegations are leveled should suffer the ordeal of protracted, time consuming and cumbersome process of law.
(b) Criminal Procedure Code (V of 1898)-------Ss.202, 203 & 204---Expressions "if any" and "sufficient grounds for any", as used in S. 203, Cr.P.C.---Significance--- Provisions as contained in Ss. 202, 203 and 204, Cr.P.C. If read together, would show that a proper safeguard has been provided by the legislature showing its intention in this regard by using the words "if any' and "sufficient grounds for any" in S. 203, Cr.P.C. And accordingly the frivolous and vexatious complaints must be buried at their inception, where no prima facie case is made out.
(c) Criminal Procedure Code (V of 1898)-------S.204---Penal Code (XLV of 1860, Ss. 302/148/149-- -Accused summoned by Trial Court in complaint containing counter version---Validity--- Nominated accused in the FIR lodged more than seven months earlier under Ss. 302, 148 and 149, P.P.C. Had filed the private complaint with a counter version about the same incident and this fact was not considered by Trial Court at the time of issuing summons to the petitioners/respondents, which was countersigned by High Court without application of mind--Although no limitation is prescribed in criminal prosecution, yet the longer the complaint is delayed the lesser would become the chance of believing in its truth, particularly when the same was based entirely on oral evidence--No sufficient ground existed for issuance of process in, the complaint case--- Judgments of both the courts below were consequently set aside and the complaint filed by the respondent was dismissed accordingly by Supreme Court."
' In yet another case reported as Muhammad Fiaz Khan v. Ajmer Khan and another (2010 SCM R 105), head note (d), the august Supreme Court laid down as under:--
(d) Criminal Procedure Code (V of 1898)-------S. 202---Preliminary proceedings---Object and scope of S.202, Cr.P.C. Is two-fold to allow free and fair opportunity to complainant to produce some evidence to make out grounds for issuing process against accused. It is the duty of Magistrate to scrutinize contents of complainant, nature of allegations made therein, material in support of accusation and object intended to be achieved, possibility of victimization and harassm ent, if any to ensure himself that no innocent person against whom all allegations are leveled should suffer ordeal of protracted, time consuming and cumbersome process of law."
13. For what has been stated above, the instant revision petition is allowed. Impugned order by which the learned trial Court summoned the petitioners is hereby set aside.