' Allah Ditta petitioner in this criminal revision calls in question the order, dated 14-4-1992, by which a learned Additional Sessions Judge at Kasur, dismissed his complaint case and proceeded with the trial of the Challan case. It has arisen in the following circumstances:---
2. Pursuant to a report lodged by the petitioner at Police Station Khudian, alleging the murder of his son Mushtaq, case F.I.R. No,481 was registered on 11-11-1990 against respondents Nos.1 to 5 under sections 302, 148/149, P.P.C. During the investigation, Ali Akbar, Zulfiqar and Sultan (respondents Nos.3 to 5) were declared innocent and the police submitted challan only against Hakim Ali and Said (respondents Nos.1 and 2) to the Court of Session through the Illaqa Magistrate. It was entrusted to the learned Additional Sessions Judge, Kasur and when the trial was in progress, the petitioner, dissatisfied with the findings of the police, brought a regular complaint against respondents Nos.1 to 5 implicating all of them for the murder of his son. The complaint also reached the Court of learned Additional Sessions Judge, Kasur, who referred it for enquiry to the Illaqa Magistrate. On the receipt of the report, the learned Additional Sessions Judge, vide his order, dated 14-4-1992, dimissed the complaint. Aggrieved by this, order the petitioner has come up in revision to this Court.
3. It is argued on behalf of the petitioner that during the enquiry the petitioner as a complainant, brought sufficient evidence on the record to establish that respondents Nos.3 to 5 were also concerned with the commission of offence like their co-accused respondents Nos.1 and 2 but the Enquiry Magistrate arbitrarily exonerated respondents Nos.3 to 5 of their criminal liability by introducing his personal knowledge into the enquiry report, dated 7-4-1992, and the learned Additional Sessions Judge, without appreciating the complainant's evidence, dittoing the report of the Enquiry Magistrate, erroneously dismissed the complaint and proceeded with the trial of respondents Nos.1 and 2 on the basis of police challan.
4. Learned counsel for respondents Nos.3 to 5 has tried to support the report of the Enquiry Magistrate as also the impugned order passed by the learned Additional Sessions Judge on the ground that respondents Nos.3 to 5 were falsely implicated by the petitioner in the murder case of his son and they were found innocent not only by the police but also by the Enquiry Magistrate.
5. The copy of the statement of Allah Ditta complainant recorded by the learned Additional Sessions Judge before referring the complaint case to the Enquiry Magistrate is not available on the record but despite its absence the revision can be disposed of on the basis of the copies of statements of Ghulam Muhammad and Kala who were cited as eye-witnesses in the F.I.R. as also in the complaint.
6. The perusal of the copies of the statements of Ghulam Muhammad and Kala recorded by the Enquiry Magistrate, who in the F.I.R. as also in the complaint filed by the petitioner were cited as eye-witnesses, indicates that whereas the former (Ghulam Muhammad) implicated all the five accused (respondents Nos.1 to 5) for causing fire-arm injuries to Mushtaq (deceased), the latter
(Kala) implicated only Hakim All for causing fire-arm injuries to the deceased and alleged that Sultan and Zulfiqar respondents had dragged the deceased by the legs when he had fallen down injured. He, however, deposed that all the live accused were armed with fire-arms and had suddenly emerged from the paddy crop to attack the victim. Both of them also deposed about the motive, indicating illicit liaison of the deceased with Mst. Aziz, the daughter of Hakim Ali respondents/accused.
7. In the enquiry report, dated 7-4-1992, the learned Enquiry Magistrate, in paragraph No,3 thereof, observed that Ghulam Muhammad and Kala, the eye-witnesses, had supported the occurrence and implicated all the accused, but despite this finding, in paragraph No,4 thereof he proceeded to hold that on the basis of further enquiry he found that at the time - of occurrence Hakim Ali respondent/accused was present at the Dera of All Akbar and he had been called by his son Boota and his daughter Mst. Aziz and later Ali Akbar, Zulfiqar and Sultan respondents/accused had come to the scene of occurrence attracted by the gunfire. It is not clear as how the learned Enquiry Magistrate conducted further enquiry and how he gathered the information about the absence of Hakim All and his three co-accused, namely, All Akbar, Zulfiqar and Sultan from the spot at the time of occurrence when the eye-witnesses clearly deposed that they all alongwith Said respondent/accused were present at the time of occurrence armed with shotguns and ultimately he held only Hakim Ali and Said as guilty and exonerated Ali Akbar, Zulfiqar and Sultan as innocent.
Thus it is obvious that the report of the Enquiry Magistrate is not based on evidence, rather, it is based on some personal information gathered by him otherwise than through evidence which he was not supposed to do. Curiously enough, the learned Additional Sessions Judge in the impugned order proceeded to describe it as 'quite comprehensive and based on valid as well as sound reasons'. Either he did not go through this report or he was otherwise bent upon exonerating respondents Nos.3 to 5 for some reasons best known to him.
8. In view of the above, the revision is accepted, the impugned order is set aside and it is directed that all the accused (respondents Nos.1 to 5) mentioned in the complaint filed by the petitioner, shall be tried for the murder of Mushtaq in the prosecution of the common object of the lawful assembly which they had constituted for this purpose. As regards the challan case, it shall remain dormant till the decision of the complaint case and may be taken up thereafter in accordance with law if the necessity arose.
9. Since the learned Additional Sessions Judge has not handled the complaint case with care, the same, alongwith the challan case, is transferred from his Court to the Court of learned Sessions Judge, Kasur for trial.