Muhammad Waheed Khan, J.- I intend to dispose of the instant criminal revision as well as Crl. Revision No.129020 of 2018 (Nabeel Ahmad versus The State etc) through this single judgment as both are outcome of the same impugned order.
2. Through the instant criminal revisions filed in terms of Section 439 Cr.P.C, the petitioners have assailed the order dated 30.11.2017 passed by learned Additional Sessions Judge, Faisalabad whereby after recording the cursory statement in the private complaint filed at the instance of respondent No.2/Ghu lam Sabir the petitioners were summoned to face the trial.
3. The brief facts of the case are that case FIR No.819 dated 30.11.2016 under Sections 302, 148 and 149 PPC was registered at Police Station Chak Jhumra on the complaint of Nabeel Ahmad stating therein that on 30.11.2016 at about 4:30 p.m he along with his brothers Adeeb Ali and Adeel Ahmad was present at home when his nephew Zain-ul-Hassan aged five years bought home Areca nut (Suppari) from the shop of Sajid. His 'Bhabi' asked Adeel Ahmad to return the same which erupted dispute between Sajid and Adeel when Adeel got back along with his nephew and told them that he has been thrashed by Sajid and others, the complaint along with his two brothers namely , Adeeb Ali and Adeel Ahmad went together to complain Sajid at about 5:00 p.m the other two brothers of Sajid namely , Majid, Hamid and one Irfan along with two unknown persons were present at the shop. They got infuriated on seeing them and again started beating Adeel Ahmad in presence of the witnesses Mubarak Ali and Shahid Hussain. Sajid started firing with his pistol, one fire of Sajid hit on the right arm of his brother Hamid while his second fire landed on the left flank of Adeeb Ali making an exit from his chest who fell down. All the accused made good their escape from the spot while Adeeb Ali succumbed to the injuries on way to the hospital.
4. During the course of investigation the accused party nominated in the FIR filed a petition under Section 22-A (6)
Cr.P.C before the learned Ex-of ficio Justice of Peace, Faisalabad seeking direction to the SHO for recording statement in the shape of cross version in the above said FIR No.819 dated 30.11.2016. The learned Ex-of ficio Justice of Peace vide order dated 17.01.2017 pleased to direct the SHO to record the version of the accused party and treat it as cross version. Feeling dis-satisfied with the investigation Ghulam Sabir/respondent No.2 filed a private complaint under Section 302, 324, 337-F(iii), 148 and 149 PPC read with Articles 155-C, 156-A and 157 of the Police Order , 2002 placing the petitioner along with others as respondents. Learned Additional Sessions Judge vide order dated 30.11.2017 after record ing the cursory statements of the witnesses summoned Adeel Ahmad, Nabeel Ahmad, Haider Ali, Muhammad Asghar SI/HIU Madina Division, Faisalabad, Dilbar Hussain Inspector/HIU Madina Town, Faisalabad to face the trial in the private complaint through bailable warrants of arrest and this order is hereby impugned by the petitioners through the titled criminal revisions.
5. The crux of the arguments of learned counsel for the petitioners is that the complainant of cross version had filed a private complaint at a belated stage with a delay of considerable period and this delay in filing the private complaint by the respondent was itself a major factor to notice dubiousness or bona fide of the private complainant.
Further submits that according to the Police Order , 2002 a private complaint is not maintainable against the Investigating Officer of any case. Lastly , prayed that the impugned order be set aside by declaring it that this was an attempt to create a counterblast on behalf of the accused party in above said FIR No819 dated 30.11.2016 registered on behalf of the petitioners' party .
6. On the other hand, learned counsel appearing on behalf of respondent No.2 in both the criminal revisions vigorously argued that as the Investigating Officers had not investigated the cross version recorded on behalf of respondent No.2 honestly and independently and the true material and eviden ce intended to produce by the respondent were not brought on the record. So, under these circumstances respondent No.2 constrained to file a private complaint in which the learned trial court after recording cursory statements of the witnesses had rightly summoned the accused persons/petitioners.
7. I have heard the arguments advanced by the learned counsel for the parties and perused the record.
8. The legal question involved in the insta nt case is whether the Investigating Officers, the allegation against whom is that they have conducted defective investigation during the course of investigation can be tried in a private complaint or not? In my view, sub Article (2) of Article 155 of the Police Order , 2002 creates a bar on filing a private complaint against the police of ficers. Sub Article (2) of Article 155 of the Police Order , 2002 reads as under:- "(2) Prosecution under this Article shall require a report on writing by an officer authorized in this behalf under the rules."
So, on perusal of above referred Sub Article (2) of Article 155 of the Police Order , 2002 it is apparent and clear that the prosecution can be initiated against the police officers on basis of defective investigation, on a report in writing by an officer authorized in this behalf under the law. This Court also relied on the dictum laid down by this Court in case of Haji Muhammad Qasim, etc v. (1) Muhammad Jahangir Khan (2) The State (NLR 2008 Criminal 42) wherein it has been observed as under:- "Art. 155(2). In presence of bar under Art. 155(2) against private complaint, private complaint against police officials would not be maintainable. Proceedings initiated by Addl. Sessi ons Judge on basis of such incompetent compliant quashed by High Court by accepting revision petition of accused police of ficials."
9. For what has been discussed above, in the above referred provision of the Police Order , 2002 and the esteemed judgment rendered by this Court in case of Haji Muhammad Qasim, etc v. (1) Muhammad Jahangir Khan (2) The State (supra), I am of the view that the private complaint filed by respondent No.2/Ghula m Sabir is not maintainable against petitioners Muhammad Amin and Dilbar Hussain as they are police officers. However , under the law there are two venues available to the respondent No.2; firstly , if trial court comes to the conclusion that the said investigating officer has interrogated the matter with mala fide intention or with some ulterior motive during the course of investigation, then it can order for prosecution under Article 155 of the Police Order , 2002. Secondly , the respondent may move an application to the high ups of the police department by availing the remedy available under the law. So, I hereby declare that the complaint filed against the petitioners i.e Muhammad Amin and Dilbar Hussain/petitioners No.1 and 2 is not maintainable. While acceptin g this revision petition the impugned order dated 30.11.207 is hereby set aside and the Crl. Revision No.205741 of 2018 is allowed in the consequence. So far as Crl. Revision No.129020 of 2018 is concerned. Learned counsel appearing on behalf of the petitioner wishes to withdraw the same, so the learned trial court is directed to proceed in the private complaint filed by respondent No.2/Ghulam Sabir against the other accused in accordance with law.
10. With these observations, both the criminal revisions are disposed of in the above terms.