' Through this quashment petition, petitioner seeks quashment of order dated 14-12-1993 passed by Muhammad Siddiq, Additional Sessions Judge, Rahim Yar Khan setting aside the order dated 17-11- 1993 whereby the private complaint was dismissed.
2. Brief facts leading to the abovenoted petition are that respondent No,1 filed a private complaint on the allegation that the accused/petitioners belaboured his son. On hue and cry of his son, he and the other witnesses came to the spot and attempted to secure the release of his son but the accused/petitioners, did not release him instead they took complainant and his son to their house.
Later on the accused/petitioners got the complainant and his son arrested and lodged F.I.R.
Against them under section 452 vide F.I.R. No,409 of 1993. It was further alleged that he wanted to have a case registered but since the petitioners/accused were influential his case was not registered and therefore, the complaint was filed.
3. During preliminary evidence, besides the complainant two other witnesses namely Saeed Akhtar P.W.2 and Muhammad Mukhtar P.W.3 were examined. Learned trial Court vide its order dated 17-11- 1993 dismissed the complaint on the following grounds:--
(i) That there are material inconsistencies in the statements of the witnesses examined.
Muhammad Tariq stated that Muhammad Afzal had carbine whereas Saeed Akhtar witness stated that one Kala had a pistol in his hand. Muhammad Mukhtar witness however, gives an entire different version in stating that none had a pistol in his hand and there was no firing at the spot;
(ii) the complaint itself does not mention any of the accused being armed with carbine, pistol or any other weapon;
(iii) the statement of complainant reveals that a case already stands registered against Muhammad Tariq vide F.I.R. No,402/93. Under section 452, P.P.C. P.S. Sadar Rahim Yar Khan and that the injuries received by Tariq have been explained in the F.I.R;
(iv) in view of the inter se inconsistencies in the statements of the witnesses and the fact that case vide F.I.R. No,409/93 stands registered against Muhammad Tariq and his father it seems that the complaint is an attempt to put pressure on the complainant party in the F.I.R.
4. The order of the learned trial Court was challenged in revision and the learned Additional Sessions Judge, Rahim Yar Khan set aside the order of the trial Court on the ground that the complainant was a cross-version of the occurrence qua which the F.I.R. Has been registered and that prima facie a case was made out against the petitioners/accused under section 337(F)/342 read with section 148/149, P.P.C.
5. Learned counsel for the petitioners has sought quashment on the grounds that there is a delay of one month in filing the complaint, that the complainant has not given the time of the occurrence, that there is no reference to the motive in the private complaint, that the complainant does not talk of any weapon being carried by the accused/petitioners whereas the other witnesses examined allegedly are the accused/petitioners with Dandas, Carbine and Rifle. Even womenfolk were stated to be armed with Dandas whereas neither the complainant in his statement nor in the private complaint mentioned the womenfolk being armed with Dandas. Learned counsel also refers to the inter se inconsistencies in the statements of the witnesses.
6. Learned counsel for the complainant/respondent conversely defends the impugned order by submitting that it was a case in which respondent and his son both were injured. He further submits that the lack of motive in the complaint should not be fatal for the prosecution case and that it was in the interest of justice that the private complaint should be heard alongwith the police challan case which was registered on the complaint of petitioner party.
7. Learned counsel for the State without touching the merits of the points raised submits that petitioners should move the Court of Session in the first instance.
8. I have heard learned counsel for the parties and have also gone through the preliminary evidence recorded by the learned trial Court. Admittedly a case vide F.I.R. No,409/93 stands registered against Muhammad Tariq and Muhammad Ashiq complainant under section 452, P.P.C.
Copy of which has been attached with the petition. Respondent No,1 Muhammad Ashiq filed a private complaint after more than a month of lodging of the F.I.R., although, he says that he was released on bail after a fortnight. Neither in the complaint nor in the statement of the complainant recorded by learned trial Court there is any mention of the motive of the alleged attack on the complainant and his son. The complainant does not even mention the time of the alleged occurrence. There are material contradictions in the statements of the witnesses. For instance, complainant does not talk of any accused being armed whereas the other witnesses alleged that the petitioners/accused were armed with Dandas. Tariq says that Afzal was armed with Carbine.
Saeed Akhtar says that one Kala was armed with pistol whereas Muhammad Mukhtar witness says that no petitioner/accused was armed. The contradictions inter se, lack of motive, non-mention of the time of the alleged occurrence and the fact that a case already stands registered against Tariq vide F.I.R. No,409/93 would lead to the irresistible conclusion that respondent/complainant failed to prove a prima facie case against the petitioner/accused. Lastly, every accused is presumed to be innocent and when an accused is discharged or the complaint against him dismissed he earns a double presumption of innocence which is difficul to rebut.
9. For aforementioned reasons, the order dated 14-12-1993 passed b: Additional Sessions Judge, Rahim Yar Khan is not sustainable in law and the same is hereby quashed.
10. It is, however, made clear that the observations made in this order shal not prejudicie either side in the police challan case registered qua the sam occurrence which shall be decided in