' The case F.I.R. No,100/91 was registered at Police Station Ghari Shahu at the instance of Mst. Zahida Begum,' wherein she stated that ler son-in-law Haider Raza Shah and his wife Mst. Shahida Parveen used to live with her whose first wife Mst. Asmat was living in Gujrat City with her three children.
About three years earlier Haider Raza Shah had contracted second marriage with her daughter Mst. Shahida Parveen. A son was born out of the wedlock that died. A few days earlier the brother- in-law of Haider Raza Shah's first wife, namely Mehmood Ahmad and others came from Gujrat to Haider Raza and threatened that he shall face the consequences of the second marriage and that they would teach a lesson. After abusing they left. On the day of occurrence at about Sahri Wela she was sitting on Jai Namaz that she heard cries of Bachao Bachao from outside. When she went outside she saw Mst. Shahida Parveen lying on the ground and Mehmood Ahmad was giving Butt blows to her son-in-law Haider Raza Shah and the blood was flowing from his head. Zaman Shah and another person whose name she did not know had caught hold of Haider Raza Shah. At the asking of Zaman Shah, Mehmood Ahmad and his companion threw acid at Haider Shah and Mst.
Shahida Parveen causing them acid burn injuries on different parts of their bodies including the faces.
2. During the investigation Arshad petitioner was also alleged to have been involved in the commission of the crime. The challan was filed in Court on 14-4-1993 and an application for summoning Arshad Shah as an accused on the basis of statement of P.W.1 Haider Raza Shah was filed by Inspector (Legal) which was allowed and Arshad Shah was ordered to be summoned by the Trial Court on 4-7-1994.
3. This writ petition has been filed to challenge the validity and legality of the orders summoning the petitioner inter alia on the grounds that the petitioner was not within the country during the days of occurrence and that he was being implicated out of vengeance's
4. It has been contended by the learned counsel for the petitioner that the petitioner did join the investigation, produced the passport before the Investigating Officer which had sufficiently shown that he was not in Pakistan during the days of occurrence and had also produced sufficient evidence to prove his innocence and the Investigating Officer was satisfied but the Magistrate, without any lawful jurisdiction and without looking into the report under section 173, Cr.P.C., which had become relevant after the amendment in Cr.P.C. And addition of section 241-A, Cr.P.C. Ordered the summoning of the petitioner and the said order was without lawful jurisdiction.
5. It was further contended that the impugned order was entirely divorced from the facts of the case and the law involved and that the petitioner was found innocent by the local police after thorough investigation and the petitioner was not challaned and that P.W.1 Haider Raza Shah had named the petitioner in his statement before the Court out of mala fides.
6. The application has been opposed by the learned counsel appearing on behalf of the State and the learned counsel appearing on behalf of the complainant. The learned counsel for the complainant submitted that the writ petition was not maintainable and that the petitioner could appear in Court and face the trial or make the application under section 249-A, Cr.P.C. The learned counsel appearing on behalf of the State has supported the learned counsel for the complainant.
7. I have gone through the statement of P.W.1 Muhammad Raza Shah made by him on 4-7-1994. In the said statement the witness has not stated that Arshad petitioner had come to his house on the fateful day and the English rendering of the statement may be of some help in the disposal of the present petition:-- "On 14-8-1991 at about 3-1/2 a.m. Somebody knocked the door of my house and called out that the door be opened. I opened the door. Two persons immediately entered the house. One of them had a rifle and the other had a jug with him. They had a third companion who also came inside. He was empty-handed and caught hold of me from behind. The man who was holding the gun put the .Same on my neck under the ear and said that acid be thrown at me (P.W.). At that time I said to the armed man that I had no enmity with you and in reply he stated that they had come to house twice with Arshad Shah and had warned that I should divorce my second wife. The armed man then said that you had not agreed to the suggestion of Arshad Shah who was their friend and at his instance they were forced to do something with me. I said that if you had personal enmity with me then you may do anything you like. The armed man gave a jerk and the man who was holding the jug was abused by him and asked him as to why he was not throwing acid at me. Immediately he threw acid on me which fell on my face and dripped down the lower part of my body. I could see till that time and the remaining acid was thrown at my wife Shahida Parveen. Thereafter the armed man caught me by the ear and the person who had earlier held me by the arm jointly dragged me down the stairs in the courtyard of the Katari where Butt blows were given in my belly and on my head.
' The motive was that I had contracted two marriages and I was being asked and forced by the mother and Arshad Shah and Anjum, the brothers of my first wife and two sisters collectively that I divorce my second wife. As I had not given divorce Zahoor Ahmad, Shahid Mehmood alias Bobi, 3rd Sabir and two others persons whose names I do not know have committed the occurrence with the connivance/abetment of Arshad. Arshad Shah had come from Gujrat with Sheikh Afzaal, Muhammad Ashiq and Syed Mehmood Hussain, the brother-in-law of my first wife to Ghari Shahu.
Khalid alias Bobi, Zahoor alias Joora were also with him and they all had said that in case I did not divorce my second wife I may lose my life to which I had said that life and death was in the hands of God to which they had said that they would see..."
8. If the statement of this witness is compared with the contents of the F.I.R. The latter excludes any possibility of abetment by the petitioner or any other person. Three persons were named in the F.I.R.
Whereas the S.H.O. Filed report under section 173, Cr.P.C. Against five persons and the petitioner was placed in column No,2. The report under section 173, Cr.P.C. Is also annexed with the file and it has been mentioned therein that the petitioner had left Pakistan much earlier to the present occurrence and had returned on 7-1-1994 as was evident from his passport. The Investigating Officer had found him innocent in the case and had not challaned him.
9. Eyidence of P.W.1 was recorded on 4-7-1994 and it was during the continuation of the statement of the P.W. That request for summoning the present petitioner as an accused, was made by Inspector (Legal) as the injured P.W. Had named him. The Magistrate proceeded to pass the following order:- ' Application for summoning the petitioner is also on the file in which the ground No,2 taken by the applicant was as under:- ' The order is also almost the same as reproduced above.
10. I have carefully gone through the F.I.R. As also the statement of Haider Raza Shah P.W.1. He has not stated that the offence was committed with the abetment of Arshad Shah anywhere in his statement. He stated simply that Arshad Shah had come to his house with the persons named above and had asked him to divorce his second wife but nothing is mentioned about the abetment under which the three accused mentioned in the F.I.R. Were abetted to commit the offence, not even a witness was,named,
11. Whatever be the nature of the crime, a heinous one is in the present' case. Nobody could be put to the rigours and agony of criminal trial on a mere statement of one of the P. Ws. That a named person had come to his house in the company of others and had threatened him. There must be cogent evidence spelling out the ingredients of abetment as defined in section 107 of Pakistan Penal Code. I cannot abstain from remarking that while ordering the summoning of the present petitioner as an accused person in the case, the trial Court was under some pre-formed opinion and there is absolutely lack of application of independent mind by him. The impugned order is not supported by any material on the file and smears of mala fides and requires to be struck down.
12. In view of the above the impugned order passed by Mr. Saeed Ahmad Ashraf, Magistrate Section 30, Lahore on 4-7-1994 in case The State.v. Ghulam Abbas etc. Relating to F.I.R. No,100/91 of Police Station Ghari Shahu, Lahore registered on the basis of statement made by Zahida Begum wife of Muhammad Yasin on 14-8-1991 is declared to be without lawful authority, without jurisdiction, illegal and the result of mala fides and of no legal effect.
13. The writ petition is accordingly allowed with no order as to costs.