RIASAT ALI BHATTI vs THE STATE and otherss

' JAVED IQBAL, J.--- This petition for leave to appeal is directed against the order, dated 16-1-2004 passed by learned Single Judge of the Lahore High Court, Lahore, in Chambers whereby the revision petition preferred on behalf of respondent has been accepted and the order, dated 30-9- 2003 of learned Additional Sessions Judge, Depalpur whereby the complainant under sections 302/324/34, P.P.C. Filed by the respondent was dismissed has been set aside.

2. Mr. Masood-ur-Rehman Mirza, learned Advocate Supreme Court appeared on behalf of petitioner and urged with vehemence that the learned Single Judge of Lahore High Court, Lahore, in Chambers has passed the order impugned without having gone through the evidence which has come on record and therefore, the conclusion as drawn by the learned Single Judge is not in consonance with evidence and record which resulted in serious miscarriage of justice. It is also contended that F.I.R. Bearing No,3 of 2003 was already got lodged under sections 353/ 324/380/186 and 511, P.P.C. For the same occurrence and therefore, the complaint filed by the respondent should have been dismissed. It is also pointed out that proper inquiry was conducted by the Special Judicial Magistrate namely Ch. Ghulam Rasool, according to whom, the alleged police encounter was not fake but a genuine one and the son of complainant was not intentionally murdered. It is pressed time and again that this Court has deprecated the tendency to cause harassment to the public functionaries by way of filing false, concocted and frivolous private complaints.

3. It is the case of respondents that as a result of fake police encounter Fazal Haq alias Fiaz and Fakhar alias Fakhari were killed in a very ruthless manner and moreso Fazal Haq alias Fiaz was never involved in any case and he was done to death by the petitioner by using naked and brutal force without any moral or lawful justification. On the other hand the case of petitioners seems to be that the above-mentioned persons were killed in a bona fide police encounter and no personal enmity whatsoever was involved hence the question of lodging complaint under sections 302/324/34, P.P.C. Does not arise.

4. We have carefully examined the respective contentions and perused the entire record with the eminent assistance of learned Advocate Supreme Court on behalf of petitioner. We have minutely examined the order impugned with care and caution, relevant portion whereof is reproduced hereinbelow for ready reference:-- "(4) I have heard learned counsel for the parties and have also gone through the inquiry report of Aamir Karim Khan, Judicial Magistrate and the dismissal order of learned Additional Sessions Judge. As far as Faiz deceased is concerned, he was not involved in any case in whole of his life. So far as, Fakhar is concerned he was Proclaimed Offender. Now whether it was a false police encounter or not I will not go into deeper appreciation of evidence but fact remains that in whole of the F.I.R. And in the Police Karwai (URDU TEXT) it has not been mentioned by the complainant i,e, respondent No,2 that a pistol was also recovered from Faiz after his death and was lying near his dead body while on the other hand, it has been mentioned in the F.I.R., which was read before me in an open Court that rifle was lying besides the dead body of Fakhar P.O. Both the deceased were gun downed at a distance of 1-1/2 mile away. It has not been argued before me and even it has not come on record as the occurrence had taken place in the shop of Tufail owner of P.C.O. And the shots fired by the police also hit on the wall or shutter of the said P.C.O. Moreover, there is not a single scratch on any of the Police Officers, who were 17 in number, as has been stated by learned Inquiry Judicial Magistrate in his report under section 202, Cr.P.C. Crime-empties taken from the spot were not .Sent to Fire-arm Expert, along with rifle and pistol of both Fakhar and Faiz to assail whether they made a fire or not till today, I do, not want to dilate upon further in this case, however, after going through the preliminary inquiry and the submissions made by learned counsel for the parties, prima facie a case is made out against the respondents and they will be given sufficient opportunities to produce their evidence before the trial Court, so impugned order passed by learned Additional Sessions Judge, is set aside."

5. Let we mention here at the outset that the question of guilt or innocence of the petitioner cannot be determined by this Court which can only be decided on the basis of evidence which is yet to be recorded by the learned trial Court. All the contentions agitated before this Court can very conveniently be raised before the learned trial Court where proper opportunity of hearing would be afforded to all the parties concerned to substantiate their view-point. We are deliberately withholding our comments on merits of the case, lest it may cause prejudice to any of the parties. It is, however, to be noted that a prima facie case is made out on the basis of inquiry report conducted by Mr. Aamir Karim Khan, Judicial Magistrate which has been considered carefully by the learned Single Judge of Lahore High Court, Lahore, in Chambers. The question of genuineness of the alleged encounter cannot be determined while exercising our jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan as the matter squarely falls within the jurisdictional domain of learned trial Court.

6. Be that as it may, the petition being devoid of merit is dismissed. The learned trial Court is, however, directed to dispose of the case at the earliest. The observations made in the order impugned shall be considered as tentative in nature having no substantial bearing on the merits of the case which should be decided in accordance with law and on merits at the earliest.

Leave declined.