By this criminal revision Ghulam Qadir and others, the petitioners herein, call, in question the order, dated 2-5-1991, by which a learned Additional Sessions Judge at Gujrat, on a complaint filed by Mukhtar Ahmad respondent, summoned them to face trial.
2. The allegations in the complaint filed by Mukhtar Ahmad respondent are that in an occurrence taking place on 25-5-1990, Muhammad Aslam (deceased) was fatally injured by his brother Muhammad Ashraf alias Saboo while dissuading him from firing at his opponents and later died in the hospital but Karam Ali taking advantage of the situation, got a false case registered against him and his nine co-accused, vide F.I.R. No.251 at Police Station Mandi Baha-ud-Din (Saddar) initially under section 307, 148/149, P.P.C., to which section 302, P.P.C. Was later on added on his death.
3. The learned Additional Sessions Judge, after recording the formal statement of the complainant, entrusted the complaint for enquiry to a local Magistrate and on the receipt of his report passed the impugned order, the operative part of which is as under:--- "Accordingly this Court is not inclined to summon Karamat Ali and Arshad respondents to face trial.
The remaining respondents/accused persons be summoned to face trial in this complaint.
Bailable warrants of arrest in respect of Muhammad Ashraf, Ghulam Qadir, Muhammad Akram, Muhammad Yousaf, Muhammad Azam, Muhammad Asghar and Atta Muhammad accused persons (respondents Nos.1 to 7) be issued for 15-5-1991."
4. It is argued on behalf of the petitioners that:-- .
(a) the complaint was an afterthought, having been filed about seven months after the occurrence.
(b) the allegations embodied in the complaint are false and improbable because Muhammad Ashraf alias Saboo and others could never kill his own brother;
(c) if at all there was any substance in the complaint, no offence had been committed by Muhammad Ashraf alias Saboo, much less by any other person as it was, at the most, an accidental act without the presence of any animus and
(d) the learned trial Judge did not apply his mind as he did not specify in the operative part of the order as for which offence the petitioners had been summoned for facing trial.
5. Learned counsel for respondent No.2 has tried to support the impugned order with reference to the findings of certain Investigating Officers and the medical evidence, particularly the post- mortem report.
6. There seems to be a good deal of substance in the above contentions of the learned counsel for the petitioners but I would desist from expressing any definite opinion on the merits of the case, which, on the suggestion of the learned counsel for the petitioners, is sent back to the trial Court for redecision after hearing the learned counsel representing the parties because he has not specified in the impugned order as for which offence he had summoned the petitioners to face trial.
7. In view of the above, the criminal revision is accepted, the impugned order is set aside and the case is remanded and now entrusted to the learned Sessions Judge, Gujrat, to redecide it in accordance with law, after hearing the learned counsel for the parties.
S.A./G-24/L