MUHAMMAD ASLAM Versus State

ORDER

PERVAIZ INAYAT MALIK, J.- - Since common question of law and facts are involved, therefore, both these petitions are being decided through single order.

2. Petitioner namely Muhammad Aslam calls in question order dated 26-1-2007 passed by learned Sessions Judge, Dera Ghazi Khan vide which private complaint filed by the petitioners/complainant against respondents Nos.1 to 3 was dismissed in limine by refusing to issue process therein.

3. Briefly stated facts as those emerge out of this petition are that petitioner Muhammad Aslam filed a complaint against respondents alleging therein that they committed murder of real paternal uncle namely Muhammad Bukhsh and Muhammad Hussain both deceased sons of Meran Khan by administering poison to them; by mixing the same in the food. On receipt of telephonic information he reached the Hospital where the deceased informed him about the occurrence and he alleges that he approached the concerned police for registration of a criminal case, which connived with the accused party and refused to register a criminal case against respondents/accused whereupon a private complaints offences under section 302/34 P.P.C. was filed initially in the Court of learned trial Court. After recording the preliminary evidence of the complainant as well as P.Ws. the learned Sessions Judge, Dera Ghazi Khan vide order dated 26-1-2007 proceeded to dismiss the same, which order has been assailed through this revision petition.

4. It is inter alia contended that the alleged occurrence took place on 24-1-2006 and matter was reported on 28-4-2006 whereas private complaint was filed on 4-12-2006, Statement of P.Ws. were recorded on 4-12-2006. Further submits that the P.Ws. 2 and 3 have corroborated the version of the complainant. The same also finds corroboration from the medical evidence as well as the report of the Chemical Examiner. Therefore, deceased did not die natural death rather the same was due to poison; that the learned trial Court has undertaken deeper appreciation of evidence which under the law is not permissible and for the purpose of issuance of process only tentative assessment is to be made and no cogent reason has been given by the learned lower Court for dismissal of the complaint and that there was sufficient material on the record on the basis whereof the process ought to have been issued and the respondents should have been tried by the learned trial Court. In support of his contention learned counsel for the petitioner placed reliance upon:

(I) PLD 2007 SC 9, (II) 1991 P.Cr.LJ 685, (III) 1984 P.Cr.LJ 1266, (IV) 1990 MLD 1636 and (V) AIR 1970 SC 1153.

Finally prays that the impugned order may be set aside and the case may be remanded back to the learned trial Court with a direction to proceed in the complaint case on its own merits.

5. Arguments heard. Record perused.

6. I find that sufficient evidence prima facie connecting the respondent/accused is available on record. Both the deceased did not die natural death. The ocular account is supported by medical evidence as well as the report of Chemical Examiner, it appears that the learned trial Court proceeded to pass the impugned judgment in an undue haste for which no plausible grounds are available in the impugned ju dgment. The law relied upon by the learned counsel for the petitioner is fully applicable in the case. The Supreme Court of Pakistan in Noor Muhammad v. The State and others PLD 2007 SC 9 in somewhat similar situation observed that deeper appreciation of evidence at preliminary stage is not permissible and that only tentative t assessment is to be made, to reach at a just conclusion as to whether prima face case is made out against respondent/accused or not. In view of above, the impugned judgment being contrary to the law declared by the Honourable Supreme Court of Pakistan, is found to be perverse, illegal and without lawful authority. The same is therefore, set aside. The complaint filed by the petitioner shall be deemed to be pending before the learned trial Court who is directed to proceed further the matter is accordance with law.

7. With these observations this petition stands disposed of,

H.B.T./M-714/L Petition allowe