MUHAMMAD IRSHAD VS Bushra Bibi, etc.

Crl.Revision. No.688/2014 Muhammad Irshad Bushra Bibi, etc.

07.08.2014. Ch.Abdul Majeed, Advocate.

Through instant criminal revision, petitioner- Muhammad Irshad has challenged the impugned order dated 25.04.2014 passed by the learned Additional Sessions Judge, Faisalabad through which he declined to summon Bushra Bibi- respondent No.1, Farwa-respondent No.2 and Munawar Hussain-respondent No.3 in a private complaint instituted by the petitioner-complainant titled as “Muhammad Irshad v. Bilal etc” in respect of offences under Section 302, 109, 34 PPC.

2.The brief facts of the case are that a written application for registration of case was submitted by the petitioner against the respondents No. 1 & 2 along with other accused persons named therein with the averments that on 17.10.2012 at about 3:15 p.m. he was sitting in his house along with his brother namely Dildar and Ibrar while his son-Saqib was standing at some distance, when suddenly Muhammad Azam and Bilal, sons of Abdul Razzaq along with two unknown accused persons while armed with their respective weapons arrived there on motorcycles. The accused caught hold of the son of complainant and made fire which hit on the head of Saqib (complainant’s son). The complainant and

prosecution witnesses rushed towards the injured who succumbed on the way while taking him to Allied Hospital, Faisalabad. The motive behind the occurrence is stated to be that Saqib-deceased had wanted to marry with respondent No.2-Farwa but her family was not agreed and petitioner- complainant also stopped his son from marrying with Farwa. The alleged incident was witnessed by petitioner-father of the deceased, Dildar and Ibrar. It is also alleged in the written complaint that on the instigation/abetment of Bushra Bibi and Farwa, accused persons made firing upon the deceased.

2.On 17.10.2012, First Information Report was lodged on the basis of above stated written application submitted by the petitioner-complainant and in said F.I.R., names of respondents No.1 & 2 herein were mentioned whereas name of respondent No.3 was not mentioned therein and respondent No.3 along with Muhammad Arshad- accused were nominated through supplementary statement. Later on, the complainant informed the Investigating Officer that due to tension and unconscious condition, he forgot to mention the names of PWs namely Ishtiaq Sarwar s/o Muhammad Sarwar, Munir Ahmed s/o Muhammad Rafique who heard Bushra Bibi and Farwa for abetting and financial aiding to the accused persons for committing murder of his son-Saqib (since dead) and through said supplementary statement, it is alleged that he also nominated unknown accused persons as Munawar Hussain (respondent No.3) and Muhammad Arshad.

3.During the course of investigation, the Investigating Officer found the respondents herein innocent and report under Section 173 of Cr.P.C., was not submitted against the respondents (herein) and during investigation, offence under Section 109 P.P.C., was also deleted. Being dis-satisfied with the outcome of investigation, the complainant- Muhammad Irshad instituted a private complaint whereupon cursory statements of Ishtiaq Sarwar, Muhammad Irshad (complainant) and Dildar Ahmed were recorded under Section 202 of Cr.P.C. After going through the complaint filed by the petitioner- complainant and cursory statements of the PWs recorded under Section 202 of Cr.P.C., as well as record, learned Additional Sessions Judge had dismissed the complaint under Section 203 of Cr.P.C., vide order dated 25.04.2014 by coming to the conclusion that no sufficient ground is available there for summoning the accused persons. Aggrieved by the order dated 25.04.2014 passed by the learned Additional Sessions Judge, petitioner- complainant preferred instant criminal revision before this Court.

4.Arguments heard. Record perused.

5.After going through the record, it reveals that the alleged occurrence took place on 17.10.2012 (about Zuhar time), challan in the State case was submitted before the Court on 22.04.2013 and complainant remained present before the learned trial court since 30.04.2013 whereas a private complaint was instituted on 08.02.2014 after delay of fifteen months and twenty one days, which was

neither explained by the complainant in the complaint nor in his cursory statement made before the court. Although it is settled proposition of law that no limitation is provided in criminal law for lodging of a complaint whereas it is held by the Hon’ble Supreme Court of Pakistan in case reported as “Muhammad Fiaz Khan v. Ajmer Khan and another” (2010 SCMR 105) that:

“The complaint looses its truthfulness with the length of delay, more particularly when it is based on oral evidence. This proposition of law was considered in Mst. Shamim’s case 2003 SCMR 1466 and laid down the following principles:---- “Be that as it may, unexplained delay in setting the machinery of law in motion prima facie points to fabrication of the prosecution story, therefore, we would like to observe that if the complainant hibernates after cancellation of the evidence must be sifted and weighed with great care and caution.”

“.........It is the duty of the complainant to explain the delay in lodging complaint which has not been done in the present case. The unexplained delay is doubtedly fatal to the case of the complainant. It is the duty and obligation of the Court to examine this aspect of the case even if the counsel of the parties had failed to raise this plea on the well-known principle that a Judge must wear all the law of the country on the sleeve of his robes and failure of the counsel to properly advise is not complete excuse in the matter as law laid down in “Muhammad Sarwar’s case PLD 1969 SC 278”. Learned High Court has erred in law to exercise discretion in favour of respondent in violation of law laid down by Full Bench of the Lahore High Court which was also approved by this Court. See Muhammad Sharif’s case PLD 1988 Lahore 725 and Haji Muhammad Saifullah Khan’s

case PLD 1989 SC 166. Keeping in view the conduct of the respondent as highlighted hereinabove, learned High Court did not justify to exercise its discretion in favour of the respondent as law laid down by this Court in Nawab Syed Raunaq Ali’s case PLD 1973 SC 236. Relevant observation is as follows:---- “Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked.”

5.It requires at this juncture to mention that the petitioner-complainant is not a person who does not possess the knowledge of facts that respondents No.1 to 3 were not challaned by the Investigating agency and offence under Section 109 PPC was deleted. In the State case, learned Additional Sessions Judge, Faisalabad took cognizance of the offence under Sections 302, 34 P.P.C., against Bilal, Muhammad Azam & Muhammad Arshad after submission of the report under Section 173 of Cr.P.C. The petitioner-complainant preferred an application for summoning the respondents No.1 & 2 as accused, which was dismissed on merits by the learned Additional Sessions Judge. In these circumstances, order of the learned Additional Sessions Judge qua declining to take cognizance against respondents No.1 & 2 was a judicial order and it could have been revised by revision and same was not assailed. The petitioner-complainant

concealed this fact in his private complaint as well as he did not narrate this fact in his cursory statement recorded in the court. All the above facts reflect that petitioner-complainant was well aware about the facts that challan was submitted wherein respondents were not impleaded as accused and offence under Section 109 PPC was deleted. He could have filed a private complaint as was done by him on 08.02.2014 at early stage. He could have taken steps immediately thereafter to file the private complaint when challan was not submitted under Section 109 PPC. These events would create a shadow of doubts as to the genuineness of claim made by the petitioner-complainant. It is also to be noticed that in order to prove the allegations of abetment and providing financial aid to the accused persons namely Muhammad Azam, Bilal, Muhammad Arshad and Munawar Hussain, the complainant had to mention this fact in F.I.R. as well as in his private complaint. In complaint, the petitioner-complainant had not mentioned that respondents No.1 & 2 also provided financial aid to the accused persons while appearing before the court for recording his cursory statement, he stated that respondents No.1 & 2 also provided financial aid to the above named accused persons for committing murder of his son namely Saqib, deceased. The complainant had not mentioned the date and time of abetment made by Bushra Bibi and Farwa with the other accused persons. It is also notable that petitioner-complainant had not moved application for summoning of respondent No.3-

Munawar Hussain as accused in the State case which also creates doubt in genuineness of allegations levelled by the petitioner-complainant in the private complaint. Even no specific role or allegation is levelled against him. Having considered the merits on the record, the cursory statements of witnesses and documents had not clearly made out any offence to issue summons to respondents. On the basis of material that was before the learned Additional Sessions Judge, he was justified in passing the impugned order dated 25.04.2014. The contentions raised by learned counsel for the petitioner-complainant are, therefore, devoid of force, resultantly, this criminal revision has no force, which is accordingly dismissed.

(Aalia Neelum) Judge

Approved for reporting.

A.S.Khan.