IFTIKHAR ALI ISANI vs THE STATE and another

' SAEED-UR-REHMAN FARRUKH, J.--- This revision petition under Article 203-DD of Constitution of Islamic Republic of Pakistan is directed against the order, dated 4-4-2003, passed by IInd Additional Sessions Judge, Shikarpur, whereby the petitioner was summoned as accused, along with fifteen other persons to face trial of a complaint case filed by Barkat Ali Isani respondent No,2 under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 458, 220, 342, 148, 149, P.P.C.

2. Briefly, the allegations in the complaint were that on 29-10-1997, at about 10/11 p.m., when the complainant was present in his bed room accused Nos.1 to 14 committed criminal trespass in his house, while being armed and forcibly took away Rs,26,000, a licensed gun and a revolver. It was alleged that respondent No,2 (complainant) offered resistance but to no effect. Instead, he was taken to Police Station Dakhan where he was involved in two false criminal cases. After failing to secure relief from "the authorities" the complainant was forced to file Constitution petition before High Court of Sindh but it was withdrawn and then the complaint (out of which the present revision has arisen) was filed. It may be mentioned at this stage that the petitioner was cited as accused No,15 in the complaint.

3. The matter was taken up by the learned trial Judge and he proceeded to hold preliminary inquiry as visualized by section 202, Cr.P.C. He recorded the statement of the respondent No,2complainant wherein he reiterated the allegations as levelled in his complaint. Besides, the petitioner tendered the following documents in evidence: "(1) True copy of C.P. No,] of 1998, (2) Order dated 3-12-1998, (3) Reply of accused Noor Muhammad,

(4) Cuttings of newspaper Ibrat and Qoom, (5) Licence of gun and (6) Writing of Munawar Isani."

' On 4-4-2003 the trial Court passed the impugned order whereby, after holding that the complainant has proved his case against the accused persons directed that "the complaint be brought on regular file". Bailable warrants were ordered to issue against all the accused inclusive of the petitioner.

4. The matter was listed for hearing before this Court on 16-5-2003 before a learned Single Judge who was pleased to issue notice to State. The operation of the impugned order was stayed meanwhile.

' On 18-3-2004 notice was issued to respondent No,2 (complainant). On 27-5-2004 learned counsel for the petitioner and respondent/complainant were heard at length. Respondent filed rejoinder/written objections along with some documents which were placed on record. It was directed that the matter be fixed before a Division Bench.

5. Today, we have heard learned counsel for the petitioner and learned A.A.-G.

Respondent/complainant was present in Court and he argued the matter himself, stoutly opposing the revision petition.

6. The main contention raised on behalf of the petitioner was that neither in the complaint nor in his statement before the trial did Court the respondent level any allegation of commission of a cognizable offence against the petitioner. Even the documents tendered by him in evidence during his statement did not connect the petitioner in any way with the alleged occurrence. It was urged that the trial Court erred in law to summon the petitioner as accused in the case so as to face the trial thereof. Learned counsel took us through the complaint and the statement as well as the documents tendered by the complainant in evidence, in support of his submission. We found that, indeed, there was not a word in the evidence or material, brought on record, which could be treated to be incriminating qua the petitioner.

7. On being confronted with the above situation, respondent No,2 (complainant) could not say anything substantial to controvert the plea raised by the petitioner. He merely relied on the documents filed by him along with his objection petition. It was pleaded that by these documents, in any case, the involvement of the petitioner in the alleged occurrence was, prima facie, established.

8. This petition merits acceptance. It is trite law that while passing order for summoning any person as accused, the Court is obliged to take into consideration only the complaint and the evidence/material collected/brought on record during the course of preliminary inquiry under section 202, Cr.P.C. Any document not forming part of record of this inquiry has to be treated to be extraneous and excluded from consideration. Since there was not an iota of incriminating evidence brought on the record of the inquiry proceedings, qua the petitioner, it was wholly illegal on the part of the trial Court to pass order for summoning the petitioner as accused in the complaint case. It appears that he acted mechanically and the impugned order vis-a-vis the petition was the outcome of lack of application of conscious mind to the facts of the case. Learned trial Judge, without discussing the relevancy of the six documents tendered by the respondent in his statement merely noticed some of them, while passing the impugned order.

' As regards the documents annexed with the objection petition, suffice it to say that these did not form part of the record of inquiry proceedings and as such are irrelevant for determination of the controversy about the legality of the impugned order.

9 . From the perusal of the record we have gleaned painful impression that the contesting parties are deeply embroiled in litigation with each other. Both belong to respectable families and are related inter se. It is not for this Court to comment on their mutual hostility. Suffice it to say that in the present case the petitioner was unjustifiably dragged in as accused thereby forcing him to face the agony and mental torture for the last more than one year pursuant due to the impugned orders which is not sustainable in law.

10. For what has been stated above, this revision petition is accepted and the impugned order, dated 4-4-2003 to the extent of summoning the petitioner as accused in the complaint case under reference, is set aside.

11. Since the alleged occurrence took place as way back in 1997, we deem it appropriate in the interest of justice to direct the learned trial Court to accord priority to this case and conclude its trial within a period of four months, positively, with a compliance report to incharge, Branch Registry of this Court at Karachi.