MUHAMMAD AKHTAR vs THE STATE and another

ORDER

MUHAMMAD QASIM KHAN, J.---Through this petition, petitioner has challenged the order dated 15- 7-2010, passed by learned Additional Sessions Judge, Khanpur District Rahimyar Khan and also prayed for quashing of complaint titled "Hasina Bibi v. Muhammad Aslam and others".

2. Learned counsel for the petitioner argued that a case F.I.R. No.268 of 2006 was registered on the statement of respondent No.2, at Police Station Zahir Pir Tehsil, Khanpur for offences under section 302/34, P.P.C. The respondent and her witnesses fully supported the story narrated in the above mentioned F.I.R. And petitioner persue the case during investigating, during bail proceedings and even she effected a compromise with the accused nominated in F.I.R. And ultimately challan was submitted and then after the lapse of about four years. Respondent No.2 filed a private complaint against the petitioner and five others and in this complaint introduced a different story and altogether a different set of accused was nominated by the respondent. After recording of cursory evidence petitioner along with others were summoned and he filed an application under section 265-K, Cr.P.C. While annexing with the same some documents to establish that earlier petitioner registered a criminal case with regard to the same occurrence and pursued the case against the nominated accused persons and ultimately a compromise between the parties was effected and now she has filed this complaint due to mala fide and ulterior motive against the petitioner and others which is against facts. Further contends that in the presence of material available before the Court, the petitioner and his co-accused could not be convicted and in such cases the Court has to exercise its powers under section 265-K, Cr.P.C.

3. On the other hand learned counsel representing respondent No.2 argued that sufficient material is available against the petitioner and other accused persons. They were rightly summoned by the trial Court to face the trial. They have not challenged the same order. There is no legal bar to file a private complaint and nor any limitation is fixed by the Court. The trial Court has to decide all these matters in the facts and circumstances .Of each case. Further contends that evidence of five P. Ws.

Has been recorded and only two witnesses remained left. Moreover, all the documents produced by the petitioner in the shape of affidavit or other material could not be given any weight unless those are not put to the witnesses during the cross-examination and then the Court shall decide the same considering all facts and circumstances of the case. Reliance is placed on PLD 2004 Supreme Court 298 titled as "Bashir Ahmad v. Zafar-ul-Islam and others" wherein it has been held as under:-- "Provision of section 561-A, Cr.P.C. Cannot be used to override the express provisions of law to offer just another remedy where a remedy already exists or to circumvent the normal course of law--- Jurisdiction under section 561-A, Cr.P.C. Is an extraordinary one preserved only for extraordinary situations which power must be exercised sparingly with utmost caution only in exceptional cases and not as a mater of routine".

And also relied upon 2005 SCM R 1544 titled as "The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman", 1973 SCM R 622 titled as "Shaikh Muhammad Yamin v. The State and 1996 SCM R 839 titled "Sheikh Mahmood Saeed and others v. Amir Nawaz Khan and another".

4. Heard. Record perused.

5. Admittedly, evidence of five witnesses out of seven, has been recorded. Since trial had commenced. Credibility of prosecution evidence against the accused/petitioner and others would be determined the trial Court considering the evidence of prosecution case and especially whether it passes the test of cross-examination or not? I do not want to discuss the evidentiary value of affidavit annexed with this petition or the other documents relating to the earlier F.I.R., at this stage.

Summoning of accused in a complaint case and normally framing of charge does not necessarily means that he stands convict or condemn. At this stage, when the evidence of five witnesses has been recoded and neither that piece of evidence was discussed in the impugned order of trial Court nor in the application of petitioner and nor any such benefit was mentioned which could be derived from this evidence of the witnesses and nor their evidence has been annexed with this writ petition to be examined. I have gone through the impugned order dated 15-7-2010, passed by learned Additional Sessions Judge through which he dismissed the application of petitioner under section 265-K, Cr.P.C. I find no illegality, perversity or any arbitrariness in that order. Hence, this writ petition is dismissed. However, learned trial. Court is directed to conclude the trial of complaint case titled "Hasina Bibi v. Muhammad Aslam and others" as early as possible preferably within a period of four months on receipts of this order.