This is a petition by Lt.-Col. Hassan Akhtar and others petitioners Nos.1 to 5, for the setting aside of the order of the learned Sessions Judge, Gujrat, dated 3-11-1985, summoning them under section 204, Cr.P.C. In the private complaint case filed against them and three others under section 302/148/149/120-B, P.P.C.
2. This petition was only admitted to consider the case of Lt.-Col. Hassan Akhtar, petitioner No.1, and dismissed in limine qua Fazal Elahi and others, petitioners Nos.2 to 5. The case of Lt.-Col. Hassan Akhtar, petitioner others, will alone be considered.
3. The brief facts of the case are that on 22-1-1984, Salim alias Guddu, Safdar, Zubair and Abbas alias Taddi, all armed with fire-arms, fired at and killed Ghulam Nabi, dece4sed. Fazal Elahi, Akram, Nazir and Sultan, co-accused, were alleged to have come running from the street to the place of occurrence, raising Lalkaras and firing in the air and causing fear and panic. The murder was alleged to have been committed at the instance of Lt.-Col. Hassan Akhtar, petitioner No.1. The police, during investigation, found that Salim alias Guddu, Safdar and Zubair, co-accused were guilty of the offence, and that Abbas, Fazal Elahi, Akram and Nazir, co-accused and Lt.-Col. Hassan Akhtar, petitioner,' were innocent. Accordingly, the names of Safdar and Zubair, co-accused, were placed in column No.3, that of Salim, co-accused, in column No.2 as proclaimed offender, that of Abbas, co-accused, in column No.2. Since no action whatsoever had been taken against Lt.-Col. Hassan Akhtar, petitioner, at all by the police and since Fazal Elahi, Akram and Nazir, co-accused, had been discharged earlier by the police, the names of these four persons did not figure in the challan either in columns Nos.2 and 3. Being aggrieved by the omission of the police to challan Lt.- Col. Hassan Akhtar and four others, Ch. Ali Ahmad, complainant, the present respondent No.1, on 1- 12-1984, filed a private complaint against all the eight accused under section 302/148/149/120-8, P.P.C. Before the Ilaqa Magistrate. The same was sent up to the Sessions Judge, who, on 9-4-1985, sent the case to the Ilaqa Magistrate for inquiry under section 202, Cr.P.C. After recording the preliminary evidence the Magistrate on 4-7-1985 found no case stood made out against Lt.-Col. Hassan Akhtar and four others. However, when the report was received by the learned Sessions Judge, he summoned all five of them on 3-11-1985 to face their trial. Being aggrieved by the said order, Lt.-Col. Hassan Akhtar, petitioner No.1, and others, filed a revision petition in the High Court, which is now before me to consider the case of Lt.-Col. Hassan Akhtar, petitioner No.1, alone.
4. On behalf of Lt.-Col. Hassan Akhtar, petitioner No.1, it is submitted that with regard to the offence under section 120-B, P.P.C., the only preliminary evidence led by the petitioner Ch. Ali Ahmad complainant/ respondent was the statements of Ghulam Rasool P.W.3, Muhammad Anwar P.W.4 and Abdul Hamid, Arms Clerk P.W.7 which did not make out a prima facie case of conspiracy. In this connection, learned counsel has relied upon Abdul Rehman's v. The State 1983 PCr.LJ 484.
5. On behalf of Ch. -Ali Ahmad, complainant/ respondent, it is submitted that the evidence of Ghulam Rasool P.W.3, Muhammad Anwar P.W.4 and Abdul Hamid Arms Clerk-P.W.7, apart from other documentary evidence, which is available on the record and which has yet to be produced in the Sessions, a prima facie case stands made out against the petitioner in respect of conspiracy.
6. I have heard the arguments of the learned counsel for the petitioner and the respondent and have also perused the copies of the statements of the preliminary evidence recorded in the private complaint case. The evidence as regards conspiracy against the petitioner is furnished by Ghulam Rasool P.W.3, Muhammad Anwar P.W.4 and Abdul Hamid, Arms Clerk P.W.7. According to Ghulam Rasool P.W.3, about eight to ten days prior to the occurrence, he, with Muhammad Anwar P.W., was sitting in the Ashiq Snack-Bar at Gujrat when Zubair, Salim and Abbas, co-accused and Lt.-Col. Hassan Akhtar, petitioner, came and sat down behind them and started talking about Gillanwala.
Lt.-Col. Hassan Akhtar, petitioner, stated that Salim's father had been murdered by Ghulam Nabi and others and that they had become so immoral that till that day they had not, taken revenge.
Salim then replied that he would soon hear (noise of fire, shot). Lt.-Col. Hassan Akhtar then said that he was posted in Gujranwala Cantonment and could assist them. He then intimated about this occurrence to Ali Ahmad complainant and Ghulam Nabi, deceased. According to Muhammad Anwar P.W.4, about a year and a half prior to the recording of hiss statement, he was sitting in Ashiq Snack-Bar with Ghulam Rasool P.W. It was about 11-00/12-00 p.m. Lt.-Col. Hassan Akhtar, petitioner and Salim alias Guddu, Abbas and Zubair, co-accused, came there and began talking about Gullanwala, when Lt.-Col. Hassan Akhtar got angry with Salim and told him that though a long time had passed, but he had not taken revenge for his father. On this, Salim replied that they would soon hear 'kharak' (sound of gun-fire). Abdul Hamid Arms Clerk P.W.7 only states that arms licences were obtained by Zubair, Nazir and Akram, co-accused, during 1982-83. From this totality of evidence one thing is clear that there is no evidence against the petitioner that he instigated any of the co-accused at the spot on the date and time of occurrence to murder Ghulam Nabi, deceased. The case apparently is not under the first part of section 107, P.P.C. An attempt has been made to show that the case falls under the second part of section 107, P.P.C., which relates to a person who engages with one or more other persons in a conspiracy for the commission of an offence, but before it can be stated that conspiracy is made out, the "agreement" between the persons to commit or cause to be committed the offence must stand proved. The preliminary evidence recorded does not show the presence of any agreement with Salim, Zubair and Abbas, co-accused. At best, what only appears is that the petitioner only aroused the sense Ghairat of his companions to avenge their father's murder. There nothing in the statements to show that the petitioner and the co-accused agreed in any manner with regard to the commission of the murder. Unless "agreement" can be prima facie spelt out, no prima facie case under section 120-B, P.P.C. Can be said to be made out to invite the second part of section 107, P.P.C. There is discrepancy in the statements of Ghulam Rasool P.W.3 and Muhammad Anwar P.W.4. The former states that the petitioner had also mentioned that he was posted in Gujranwala Cantonment and could help his friends, but this has not been stated by Muhammad Anwar P.W.4. It is the case of the respondent that some further evidence remains which was not produced before the Inquiry Magistrate, but which, if brought on the record, would prove the conspiracy. In this connection it is submitted that the petitioner recommended the application of Zubair, co-accused for the grant of a fire-arm licence, though the said co-accused was an any deserter and involved in a case under section 307, P.P.C. In respect of an attempt on the life of the present deceased, Ghulam Rasool. In the first instance, such evidence, if available, should have been brought on the record to sustain the, complainant's/ case against the petitioner for conspiracy. This has not been done further, when Abdul Hamid, Arms Clerk P.W.7 was examined, he was not put any question to show that the arms licence issued to Zubair, co-accused, was on the recommendation of the petitioner.
Presently, therefore, there is no evidence from which prima facie it may appear that tie petitioner had agreed to murder Ghulam Nabi, deceased, or have him so murdered. Without some tangible evidence being on the record with regard to the "agreement", conspiracy is not made out under section 120-B P.P.C. Abdul Rahman v. The State 1983 P Cr. L J 484 is a case somewhat similar to the present case and offers proper guidance. The summoning of the petitioner amounts to an abuse of the process of the trial Court and continuance of proceedings against the petitioner would be nothing more than harassm ent.
7. For the foregoing reasons, this petition is accepted qua Lt.-Col. Hassan Akhtar, petitioner No.1, and the order of the learned Sessions Judge, dated 3-11-1985, to the extent that it concerns the petitioner, is set aside and quashed. The bonds furnished by the petitioner, if any, shall stand discharged. Proceedings in the case shall, however, continue in accordance with law against the remaining seven accused.