This revision petition under section 439, Cr.P.C. By Rab Nawaz and eleven others, has arisen in the following circumstances.
2. On 13-9-1987, at about 3 p.m., an incident occurred in the Khata of Sharaf Din, an uncle of Faiz Ahmad, complainant, in which two persons, namely, Abbas and Yasin were injured. Abbas later died of the injuries. Faiz Ahmed, complainant, reported the incident to the police and named the petitioners as the accused persons. As a result of police investigation, it was found that of the petitioners, Riaz, Talib Hussain and Mushtaq were innocent of all the charges; that the remaining petitioners were innocent of the offences under sections 148 and 302, read with section 149 of the P.P.C but were guilty of an offence under section 336 of the P.P.C. They were challaned accordingly.
It was also found that seven persons all belonging to the complainant party were responsible for the alleged acts and accordingly three of them, Azam, Muhammad A.I and Muhammad Yar, were held responsible for the murder of Abbas, and Muhammad Tufail Shahbaz, Sabir, Muhammad Yar and Manzoor Ahmad were held responsible for the injuries of Yasin. These persons were also challaned accordingly. The police obtained the order of the Magistrate on 21-4-1988 discharging the petitioners.
3. Later on, two private complaints were instituted, one by Muhammad Aslam against seventeen persons, including the above-named seven persons, namely, Azam, Shahbaz, Muhammad A.I, Muhammad Yar, Manzoor Ahmad, Sabir and Muhammad Tufail and ten others and the other by Faiz Ahmed, complainant, against the petitioners. The version of the incident in the complaint of Muhammad Aslam was, it is stated, the version of the manner of the incident as it had occurred according to the petitioners whereas the version in the complaint of Faiz Ahmad is the version as contained in the F.I.R.
4. The learned Additional Sessions Judge to whom the complaint of Faiz Ahmad was entrusted for disposal, directed an inquiry for the purpose of ascertaining the truth or falsehood of the complaint to be held by a Magistrate. The learned Inquiry Magistrate, however, reported on 15-12-1988 that it was clear that the murder of Abbas had taken place due to firing "but it could not be easily traced as to who was the murderer because at the time of occurrence both the parties were firing at one another. The fact of firing of both the parties is not mentioned in the complaint. The witnesses produced by the complainant have not been able to attribute murder to any of the respondents. A lot of time has also elapsed. In these circumstances it is much difficult to disagree with police investigation". In reaching that conclusion, the learned Inquiry Magistrate observed that he had made on the spot inquiry; he had also collected some secret information. He "suddenly visited the place of occurrence in Chak No. 151/E.B:" and found that the dead body of Abbas was present `among cattle' but there were no bullet signs on trees and walls, nor did any cattle suffer any injury.
In his view both the parties that is the complainant party and the accused party had been firing on each other" because of a dispute of a Khata'.
5. The learned Additional Sessions Judge did not agree with the report. After hearing the parties and perusing the complaint and the preliminary evidence "produced by the complainant in support of his complaint" the learned Additional Sessions Judge observed that the " complainant's version in the complaint cannot be straightaway thrown out because of the presence of a counter- version". In his view, therefore, a prima facie case connecting the petitioners with the crime had been made out. He, therefore, directed them to be summoned as accused persons.
6. Learned counsel for the petitioners argues that the learned Additional Sessions Judge was in error in not agreeing with the inquiry report; according to him, the learned Additional Sessions Judge should have taken the material collected by the police into consideration and only after considering that material and the medical evidence, could he have summoned the petitioners.
7. This question was considered by me in Waqarul Haq v. The State (PLD 1988 Lahore 336) in the light of the principles of law laid down in Raja Khush bakhtur Rehman v. The State (1985 SCMR 1314) and it was held that the Court of Session is fully competent to summon an accused person who had been found innocent by the police and his failure to examine the material collected by the police before summoning such an accused person will not vitiate the order. This view, it appears, was, affirmed by the Supreme Court in the same case. (See 1988 SCMR 1428). As observed above, the learned Additional Sessions Judge had, before directing the petitioners to be summoned, perused the complaint and the preliminary evidence produced by the complainant in support thereof and, therefore, the order of the learned Additional Sessions Judge does not suffer from any legal infirmity. I do not, therefore, see any merit in the petition and dismiss it.
S.A./R-19/L