MUHAMMAD BASHARAT vs KHADIM HUSSAIN and 2 otherss
This appeal arises from an order of the Shariat Court, which quashed a private complaint filed by the appellant against the respondents. The core legal question concerns the maintainability of a private complaint filed against accused persons who were previously discharged by the police under Section 169 of the Code of Criminal Procedure 1898, where such discharge was subsequently concurred with by the trial court. The appellant initiated the private complaint nearly one year after the alleged incident, without challenging the trial court's earlier order confirming the respondents' discharge. The Supreme Court of Azad Jammu and Kashmir dismissed the appeal, upholding the Shariat Court's decision. The Court held that a belated private complaint is generally disfavored, particularly when the accused have already been discharged by the police and that discharge has been confirmed by the trial court. The principle laid down is that while a private complaint is a valid legal remedy, it cannot be used to circumvent a judicial order confirming a discharge without proper challenge, though the trial court retains the inherent power to summon such persons if incriminating evidence emerges during the trial.
- Can a private complaint be maintained against accused persons who have already been discharged by the police and the trial court?
- Does a trial court retain the power to summon discharged accused persons if incriminating evidence surfaces during the trial?
- Is a private complaint filed after a significant delay, following a judicial order confirming the discharge of the accused, legally sustainable?
- Section 302, Azad Penal Code
- Section 169, Code of Criminal Procedure 1898
- Section 316, Azad Penal Code
- Section 34, Azad Penal Code
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
' SYED MANZOOR HUSSAIN GILANI, J.--- An order passed by the learned single Judge of the Shariat Court at Mirpur on 29-1-2005 is called in question through this appeal. The learned Judge of the Shariat Court has ordered the quashment of a private complaint filed against the respondents by the appellant.
2. The facts giving rise to the filing of the complaint before the District Criminal Court, Bhimber on 9-12-2003 are that on a complaint filed by Zainab Bi on 29-7-2002 before Commissioner that her son Muhammad Ashraf was subject to physical torture by police which included respondents and others at Police Station Ali Bagh on 24-7-2002, as a result of which the victim died on 25-7-2002. An inquiry was conducted by S.D.M. Bhimber on the basis of which a case under section 302, A.P.C.
Was registered under F.I.R. No,127, dated 23-8-2002. On an investigation, respondents were released by the Investigating Officer under section 169, Cr.P.C., while three others were challaned under section 316/34, A.P.C. The report of the Police Officer discharging the respondents under section 169, Cr.P.C. Was concurred by the trial Court on 21-12-2002. Muhammad Basharat, the present appellant filed a private complaint under section 302/34, P.P.C. Against the discharged respondents before the trial Court on 9-12-2003. The trial Court issued the process against the respondents. The process issued by the trial Court was challenged before the Shariat Court which culminated into the impugned order.
3. We have heard the learned Advocates for the parties and gone through the record of the case.
4. It is revealed from the perusal of the record that the alleged incident took place on 25-7-2002.
The respondents were released by the police under section 169, Cr.P.C, and this order was confirmed by the trial Court on 21-12-2002. The private complaint against them was filed before the trial Court on 9-12-2003 one year after the alleged incident. The appellant did not challenge the order confirming discharge of the accused-respondents by the trial Court, instead filed the private complaint.
5. A belated private complaint is not favored by the Court, more so, when the order by the police under section 169, Cr.P.C. Is confirmed by the same Court, which tries the other accused, who were part of the case in which the respondents were discharged. The learned Advocate for the respondent has rightly relied upon the cases reported as PLD 1978 Kar. 348, 1985 PCr.LJ 349 and 1983 PCr.LJ 2235.
6. We do not find any fault in the order passed by the Shariat Court hence finding no force in this appeal, it is hereby dismissed.
' It is however, made clear that it will be open to the trial Court to summon the accused- respondents, if during .The course of trial, any evidence incriminating them is found. The present order would not affect the powers of the Court, in case it reached to that conclusion.