' MUHAMMAD ILYAS, J.---This petition has arisen out of an occurrence which took place on 21st September, 1993, in Mohallah Salamatpura, Police Station Mughalpura, Lahore, which resulted in the death of Muhammad Aslam and injuries to others. On the basis of F.I.R. Lodged by petitioner No,1, Tahir Mahmood, who is son of Muhammad Aslam deceased, a case under sections 302 and 324 read with section 34 of the Pakistan Penal Code was registered against Muhammad Umar, Muhammad Hamid, Muhammad Tariq, Muhammad Khalid and Muhammad Nadim. Cross-version.
Put forth by the accused, however, is that the complainant party was the aggressor. A criminal complaint incorporating the cross-version was, therefore, filed by the said Muhammad Nadim, who is respondent No,1 herein, against the petitioners, namely, Tahir Mahmood Tanvir Aslam and Muhammad Javaid. This Tahir Mahmood is the same person who had lodged the said F.I.R. In the criminal complaint, it was alleged that the petitioners had committed offences under sections 337 and 324 read with section 34 of the Pakistan Penal Code.
2. The Magistrate who heard the criminal complaint recorded Evidence of the complainant, Muhammad Nadim but expressed the opinion that there was no sufficient ground for proceeding against the petitioners. They were, therefore, not summoned and the complaint was dismissed. His order was impugned before an Additional Sessions Judge but without success.
3. Order of the learned Additional Sessions Judge dismissing the revision petition was challenged by the complainant by invoking Constitutional jurisdiction of the Lahore High Court. Writ petition filed by the complainant in this regard was accepted by a Single Judge of the High Court as he had found that the complainant, Muhammad Nadim, who is respondent No,1 in the petition in hand, had made out a prima facie case for summoning of the petitioners. He opined that both the Courts below had committed error of law and had thus gone outside their jurisdictions. In conclusion, he passed the following order:-- "Resultantly this Court in the exercise of the Constitutional and inherent powers is duty bound to interfere and declare that the impugned orders were illegal. To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. In exercise of its Constitutional jurisdiction, this Court will immediately come to the rescue of a citizen and direct that the concerned authorities, Tribunal or Court, shall perform its legal obligation in the matter.
The right to have fair and proper trial is invaluable right of every citizen. The present case is an example in which the petitioner is being deprived of his right and the impugned orders passed, are therefore, in violation of the said principles and, are therefore, declared illegal and of no legal effect. The two impugned orders are set aside. The complaint is restored to the Court of Illaqa Magistrate as discussed above. There is sufficient and prima facie evidence in the complaint case for summoning of the accused and proceeding further, in accordance with law. This writ petition is accepted with no orders as to costs.
11. The petitioner may move this Court for the transfer of the complaint case before the same Court seized of the murder case in view of the rule laid down in 1986 PCr.LJ 989, PLD 1981 SC 522 and PLD 1966 SC 708 (Noor Illahi's case).
12. The writ petition is accordingly disposed of."
4. Feeling aggrieved by the judgment of the learned Judge in Chamber, the petitioners seek leave of this Court to assail it by means of an appeal.
5. It was contended by Mr. R.A. Awan, learned counsel for the petitioners that, if the accused in the police case felt that, factually speaking, their version was correct, they will be able to cross- examine the prosecution witnesses in the police case with reference to their version of the occurrence and could also produce defense evidence to substantiate it, and as such there was little justification for restoration of the criminal complaint filed by them in which they have incorporated their version. It is true that the accused in the police case will be able to cross- examine the prosecution witnesses and also examine defense witnesses as stated by the learned counsel but if the accused in the police case are found to be the aggressors, it would not be possible for the learned Court, trying the .Police case, to punish them for this aggression. Thus, the ends of justice will not be met just by allowing the accused in the police case to cross-examine the witnesses appearing against them or by producing their own witnesses in defense.
6. Both from the F.I.R. Lodged by petitioner No,1, Tahir Mahmood as well as from the criminal complaint filed by the respondent, Muhammad Nadim, it is clear that in the occurrence, referred to above, which was in respect of certain property, firing by lethal weapons was resorted to by both sides. Each party holds the opposite-party as aggressor and claims to have fired in exercise of the right of self-defense. It is not denied that one member of the accused party as depicted in the F.I.R., namely, Muhammad Nadeem respondent, who had filed the criminal complaint, sustained fire- arm injury on his leg. His medico-legal report is on the record and it was also produced before the learned Magistrate who had dismissed the criminal complaint. The learned Judge in Chamber had thoroughly examined the evidence produced in the complaint case before passing the impugned judgment. Anyhow, this is not the end of the matter. It will, in due course, be decided by the learned Trial Court, who may hear the police case as well as the complaint case together, as to which of the two parties had resorted to aggression. Judgment recorded by the learned Single Judge will provide opportunity to both sides to place their respective cases before the learned Trial Court in proper perspective and whosoever is found guilty will be punished. As indicated above, accused in the complaint case could not be punished if the learned Judge in Chamber had not restored the complaint case. His judgment appears to be just and fair. In any case, it is not perverse or shocking so as to call for interference by this Court. We are, therefore, not inclined to interfere with his judgment which, of course, will not, in any way, influence the learned Trial Court in deciding the matter on the basis of the evidence to be recorded by it and in accordance with law.
7. Resultantly, while refusing leave to appeal, the present petition is le dismissed.