Through this petition, validity of summoning order dated 09.11.2015 has been called in question which was passed in private complaint titled Mst. Nasim Mai. Vs. Raham etc. under Sections 302/324/365/341/148/149 PPC filed on 28.04.2015 in respect of an incident dated 08.08.2014 wherein Mansoor Ahmad son of petitioner Muhammad Saeed and husband of respondent No.2 Mst. Nasim Mai, was done to death. Petitioner , father of the deceased lodged FIR No.356/2014 at Police Station Kot Chutta District Rajanpur again st two accused namely Allah Yar son of Jumma and Wasim son of Iqbal.
Investigation was conducted and on its completion challan was submitted before trial court against above mentioned two accused persons. Charge was framed against them on 15.10.2014 whereafter statem ents of the prosecution witnesses were also recorded. Mst. Nasim Mai, respondent, then moved a petition under Section 22-A,B Cr.P.C before learned Justice of Peace seeking direction to S.H.O to register second FIR regarding the same incident against different set of accused namely Raham, Nawaz sons of Haider , Manzoor and Juma sons of Raham and one Maqsood Ahmad son of Allah Bakhsh alleging that in fact they had murdered Mans oor Ahmad, her husband and not the accus ed nominated in the FIR lodged at the instance of father of deceased. Learned Justice of Peace allowed the petition directing the S.H.O to register second FIR vide order dated 23.12.2014 which was challenged by the proposed accused Maqsood Ahmad in writ petition No.157/15.
The above writ petition alongwith writ petition No.171/2015 filed by Mst. Nasim Mai for implementation of the same order came up for hearing before this Court on 08.04.2015 whereby the order passed by learned Justice of Peace dated 23.12.2014 was set-aside. Thereafter , Mst. Nasim Mai filed private complaint in which after recording cursory statements, the trial court summoned the accused vide order dated 09.1 1.2015, operative para of the same is reproduced as under:- "Mst. Nasim Mai, the complainant herself appeared as PW-1, Dildar Parvaiz appeared as PW-2 and Muhammad Aqeel appeared as PW-3. On behalf of the complainant, private complaint as Ex.PA, copy of postmortem report of deceased as Ex.PB, attested copy of FIR No.356/13 u/s:324/34 PPC (added 302 PPC) Ex.PC, copy of writ petition No.171/2015 Ex.PD and copy of order dated 08.04.2015 in writ petition No.157/15 Ex.PE were produced in documentary evidence. The oral as well as documentary preliminary evidence produced by the complainant supported and corroborated the contents of the complaint Ex.PA. Prima facie, there is sufficient material on record to proceed against the accused for the offences u/s:302/341/148/149 PPC. Hence, the accused are summoned for 20.11.2015. The complainant is also directed to furnish copies of complaint, cursory statement of complainant and all other documents relating to the complainant on next date of hearing."
2. Learned counsel for petitioners contends that the impugned order has been passed without applying mind to the material facts of the case and law on the subject laid down by the superior courts; that father of the deceased had already got criminal case registered for the murder of his son against Allah Yar and Muhamma d Waseem who were challaned to face trial; that Waseem accused nominated in the FIR was real brother of Mst. Nasim Mai whereas Allah Yar was also her close relative; that order regarding registratio n of second FIR on application filed by Mst. Nasim Mai was set-aside by this Court vide order dated 08.04.2015 passed in writ petition No.157/2015 and without going through the said order , learned Justice of Peace proceeded to summon the accused in private complaint in routine and in a mechanical way without application of judicial mind ignoring the law laid down by the superior courts in cases titled "Zafar and others V. Umar Hayat and others" reported in 2010 SCMR 1816 , "Muhammad Fiaz Khan V. Ajmer Khan and another" reported in 2010 SCMR 105 and "Abdul W ahab Khan V . Muhammad Nawaz and 7 others" reported in 2000 SCMR 1904 .
3. Petition has been opposed on the ground that husband of Mst. Nasim Mai was done to death by the accused who were not nominated in the FIR lodged by father of the deceased and that she was also restrained from disclosing the facts before investigating agency by lodging the FIR; that when she was set at liberty , a petition under Section 22-A,B Cr.P.C was moved by her before learned Justice of Peace on which order was passed which was set-aside by this Court while keeping the option of filing private complaint open to her; that after recording cursory evidence, accused were summoned by the trial court; and that impugned order was in accordance with law .
4. Heard. Perused.
5. I have gone through the impugned order and other material available on the file with the assistance of learned counsel for parties and have heard them at length. The contention of learned counsel for the petitioner that impugned order has been passed without applying judicial mind to the material facts of the case and law on the subject laid down by Apex Court, is convincing. In the impugned order no reference is made as to what facts were agitated in writ petition filed against the order passed by learned Justice of Peace directing the S.H.O to register second FIR. The learned trial court has noted in the impugned order that apart from complaint, cursory statements of the witnesses and copy of FIR already lodged regarding the same incident and copy of writ petition No.157/2015 and writ petition No.171/2015 alongwith copy of order dated 08.04.2015 passed in above writ petitions, were placed on record. The impugned order clearly reveals that above material was not even considered by the learned trial court and order was passed in a mechanical way stating that oral as well as documentary and preliminary eviden ce produced by the complainant supported and corroborated the contents of complaint(Ex.P A) which prima facie is sufficient material to proceed against the accused and they were summoned to face the trial. The litigation which remained pending on the question of registration of second FIR was altogether ignored before issuing process to the accused. In case titled "Zafar and others V. Umar Hayat and others" reported in 2010 SCMR 1816 , the scope of provisions of Section 202, 203 & 204 Cr.P.C was considered by the Apex Court and it was laid down that trial court must scrutinize supporting material in support of accusation, object intended to be achieved, possibility of victimization and harassment, to ensure itself that no innocent person against whom allegations are levelled should suffer the ordeal of protracted, time consuming and cumbersome process of law. It was observed that although no limitation is prescribed in criminal prosecution, yet longer the complaint is delayed, the lesser would become the chance of believing its truth, particularly when the same was based entirely on oral evidence. In other cited cases at the bar noted above, the same proposition came to be considered by the Apex Court wherein it was observed that when complaint is filed after a considerable delay which was not explained by complainant, even in such situation it raises suspicion as to its truthfulness.
Delay in filing private complaint is not by itself fatal except under very special circumstances. Complaint loses its truthfulness with length of delay , more particularly when it is based on oral evidence. The learned trial court was required to consider the material facts of the case in the light of law laid down by the Apex Court as noted above and decide the question as to whether it was a fit case to issue process to the accused to face the trial. However , the learned trial court in this case has failed to perform its statutory duty to consider the material available and proceeded to summon the accused without applying judicial mind. In this backdrop, impugned order is not sustainable.
6. For the above reasons, this petition is allowed , impugned order is set-aside and the matter is referred to the learned trial court to consider the question of issuing process to the accused after going through the material available as noted above and then decide it afresh applying judicial mind.