WAQAR HUSSAIN SHAH Versus THE STATE

ORDER

1. Facts necessary for decision of this petition are stated below.

2. The occurrence in this case took place at 2/3 a.m.(After mid‑night) on 6‑7‑1986. The case was registered at Police Station Hujra Shah Muqeem at 4.30 a.m. on the same morning by SI Muhammad Ashiq at the instance of Nazir Ahmad complainant. It was stated by Nazir Ahmed complainant in his FIR that he purchased 10‑1/2 acres of agricultural land, about 1 ' 5/16 years earlier from Mst. Islam Bibi d/o Usman Ali and others in village Qila Sondha'Singh. Thereafter, he shifted his residence from Rakh Dev Sial to QiIa Sondha Singh. About 4/5 years ago his son Yasin secured about 60/65 acres of land on oral lease for three years from Waqar Hussain s/o Moaj Derya and others. He started cultivating the said land. However, before the ripening of wheat crop Waqar Hussain started filing applications with an allegation that Yasin was a trespasser in their land. Yasin did not deliver possession of land to Waqar Hussain etc. who about 4 years earlier injured his son Sher Muhammad by firing at him. Waqar Hussain etc. five accused were challaned in a case under sections 307/447/149/148, P.P.C.

3. It was stated by Nazir Ahmad in his statement that on 5‑7‑1986 at about 7/8 p.m. he and his son Yasin were present in front of their house. Waqar Hussain, Hasnat Shah, Javedul Hasan and Muratab Ali came to Adda Sondha Singh and exchanged hot words with his son Yasin. The accused left the adda saying that they would take revenge.

4. It was stated by Nazir Ahmad in his FIR that in the following night his sons Muhammad Ashiq, Yasin alongwith Khadim Hussain a son of Yasin slept near pacca road in open in front of the shop of Nazir Ahmed. At about 2/3 a.m. he and his son Sher Muhammad returned home after having a round of maize crop. They saw a car near the cot of Yasin on the road. They both rushed to that side and saw Waqar Hussain, Hasnat Shah, Javed Hasan and Muratab Ali armed with guns coming out of the car. Muratab Ali shouted a lalkara. Waqar Hussain fired shot hitting Yasin on the lower part of his back. On hearing the fire Khadim Hussain, Muhammad Ashiq PWs got up and started running. Hasanat Shah, Javed Hasan and Miuratab Shah accused fired at them. Khadim Hussain received injuries on his left thigh and right flank. He fell down. The firing attracted many other villagers. The accused left the spot wit h their respective weapons in the car. Yasin died there as a result of injuries. Khadim Hussain was taken towards hospital for treatment and examination. He however, died in the way as result of injuries.

5. The police after registration of the case undertook investigation and on 17‑11‑1986 filed complete challan against 7 accused. Waqar Hussain and Javed Hasan having been found innocent, were placed in column No.2 of the challan. Hasnat Shah and Muratab Ali, named in the FIR, alongwith Muhammad Yasin, Muhammad Tufail and Muhammad Ashraf, not named in the FIR were challaned in column No.3. It appears that after filing of complete challan further investigation was undertaken by the Punjab Crimes Branch who got the case against Javed‑ul‑Hasan accused cancelled vide order dated 30‑7‑1987 passed by the Illaqa Magistrate. Waqar Hussain was also got discharged by the police from Illaqa Magistrate, though the order of discharge is not on the file of this petition. A Tatimma (Supplementary) challan was filed by police on 30‑7‑1987. In that challan Hasnat Ahmad was placed in column No.2, being found innocent whereas Muratab Ali, Muhamufad Tufail, Muhammad Ashraf and Yasin were challaned in column No.3. On 17‑11‑1987 Nazir Ahmad complainant filed an application making Waqar Hussain and Javed Hasan as respondents before the learned Sessions Judge, Okara with a request that "the accused be summoned for trial." In the title of this petition it was stated to be "an application for summoning Waqar Hussain and Javed Hasan.11 Notice was sent to Waqar Hussain and Javed Hasan for 10‑12‑1987. There is nothing to indicate as what happened on that date. The order dated 18‑4‑1988 at the bottom of the above‑mentioned application indicates that notice was given to State for 10‑ 5‑1988. This petition came up for hearing on 11‑5‑1988 instead of 19‑5‑1988. The learned trial Judge issued notice to the accused and their counsel for 16‑5‑1988 and again for 22‑5‑1988. On that date Waqar Hussain was present in Court in person. Notice sent to Javed Hasan was not received back after service. Muhammad Tufail, accused could not be brought from Jail. The case was, therefore, adjourned by learned Additional Sessions Judge‑11, Okara for 7‑6‑1988 for presence of the accused.

6. Learned counsel for the Waqar Hussain and Javed Hasan petitioners contended that after discharge and cancellation of case by the lllaqa Magistrate, the learned Sessions Judge had no jurisdiction/ authority to summon the petitioners to face trial in the case. Secondly that the petitioners could not be made, to suffer double jeopardy because they underwent hazards of investigation to prove their innocence and could, therefore, not be asked to face trial in Court, and finally that they could have been summoned by learned trial Judge to face trial only after recording of some evidence in Court. The above contentions were controverted on behalf of the State and complainant.

7. It may here be pointed out that after discharge of the accused through an executive order by the Illaqa Magistrate upon police report, Nazir Ahmad complainant filed Criminal Miscellaneous No. 12‑QC of 1987 seeking quashment of the discharge order. The said petition was dismissed by a learned Judge of this Court vide order dated 17‑3‑1987 (Reported as P L D 1987 Lahore 236, Nazir Ahmad v. The State). This order was challenged through Cr. P S L A 120 of 1987 before Supreme Court of Pakistan where the learned Judges granted leave to appeal on 14‑7‑1987. It is stated at the Bar by learned counsel for the petitioners that the appeal before the Supreme Court is still pending, and that the pendency of the said appeal has no bearing upon the present petition in hand.

8. A perusal of the above narration of facts would indicate firstly that the learned Sessions Judge had already taken cognizance of the case on receipt of report under section 173,Cr. P.C. appended with complete challan dated 17‑11‑1986, in which Waqar Hussain and Javed Hassan, present petitioners, were indicated in column No. 2 and secondly that the petitioners were got discharged by Police after filing of complete challan on: the basis of further investigation and supplementary challan. In my view the prosecution had no jurisdiction/ authority to file supplementary challan after filing of complete challan in Court. It is correct that the police can investigate a case even after filing of complete challan. but there is no law allowing filing of supplementary challan thereafter. Prosecution can file incomplete challan and then complete challan under the Code of Criminal Procedure and Police Rules but is not permitted to file supplementary challan. When a Court takes cognizance of an offence on receipt of incomplete or complete challan the prosecution is left with two courses only.

9. One: to produce evidence in Court and allow the learned trial id Judge to decide the case on merits according to law.

10. Two: to seek withdrawal of the case u/s. 494, Cr. P. C.

11. It is apparent that the prosecution did not follow any of the above courses and instead initiated parallel independent proceedings by filing supplementary challan and getting the two accused discharged through an executive order of the Illaqa Magistrate. The procedure could not be considered as a complaint. It was just a miscellaneous application drawing the attention of the learned trial Judge that the said two accused be summoned to face trial. If it had been a complaint, all other co‑accused of the present petitioners must also have been impleaded as party. The learned trial Judge was competent to issue notice to Waqar Hussain and Javed Hasan, challaned, as accused in column No. 2 of the complete challan to face trial alongwith other accused. The accused‑petitioners apparently were summoned by learned trial Judge keeping in view their names in column No. 2 of the challan. It was, therefore, not necessary for the, Court to record evidence before issuing, notice to them for appearance in Court. The discharge of present petitioners through an order of Magistrate does not bar their trial by a Court of competent jurisdiction nor such trial could be termed as double jeopardy.

12. Of late it has been observed that after filing incomplete or complete challan in Court the police on one pretext or the other and some time for reasons only known to them start investigating cases registered at police stations, and record findings of innocence of accused, without mentioning the names of the persons on whose evidence the said opinion is based in the challan. Thus, the Court is unable to find whether the opinion of the police was based on sound material or not. This makes the whole exercise of further investigation after filing of complete challan meaningless. It also makes the prosecution case doubtful which results in acquittal of the accused even in serious cases of the nature of one in hand. The Court is not bound by police opinion. It has to decide each case on merits on t he basis of evidence recorded during trial investigation after filing of complete challan is always uncalled for, unnecessary and must be avoided. It in fact does not advance and rather retards the course of justice.

13. In the instant case it was not necessary for the learned trial Judge to record any evidence before issuing process to the petitioners to face trial. No exception can be taken to the impugned order of summoning of the accused‑petitioners to face trial alongwith other accused. The proceedings of filing of supplementary challan after the filing of complete challan and the consequent orders of discharge of the present petitioners by a learned Magistrate were .holly illegal Bpd without jurisdiction. I find no merit in this petition which is accordingly dismissed.

14. M.Y.H./W‑40/L Petition dismissed.