MUHAMMAD SALIM and 4 others vs FAZAL MUHAMMAD and anothers

' HAMID ALI MIRZA, J.---This criminal appeal with leave to this. Court is directed against order dated 10-4-2000 in Criminal Revision No,322 of 1999 passed by a learned Judge in Chambers of Lahore High Court, Lahore, whereby the order dated 1-12-1998, dismissing private complaint of Fazal Muhammad respondent passed by learned Additional Sessions Judge, Faisalabad, was reversed.

2. The brief facts of the case are that on 12-7-1996 Muhammad Boota, appellant No,5, got registered F.I.R. No,403 of 1996 at Police Station Saddar, Faisalabad under sections 324/337-F(i)/34, P.P.C., but subsequently section 302, P.P.C. Was added because of death of injured Muhammad Shabbir, against Muhammad Mushtaq, Muhammad Ishaque;, Muhammad Mustafa and Muhammad Ishfaq. Fazal Muhammad respondent filed a private complaint under sections 302/324/148/149, P.P.C. On 13-9-1997 against the appellants and two others namely Muhammad Zahid and Jagoo. The learned trial Court, judge, after examining the complaint, referred the matter to the Ilaqa Magistrate under section 202, Cr.P.C., who, after recording the statements of the witnesses, submitted his report to the learned Additional Sessions Judge, Faisalabad. The learned Additional Sessions Judge, after considering the material on record, dismissed the private complaint of respondent Fazal Muhammad. The respondent preferred a criminal revision before Lahore High Court on 6-5-1999, which was heard and allowed by the learned Judge in Chambers setting aside the order dated 1-124998 passed by the learned Additional Sessions Judge, Faisalabad.

3. We have heard the learned counsel for the parties and perused the record.

4. The contention of the learned counsel for the appellant, after going through the impugned judgment, is that the learned Judge in Chambers has not given any reason or ground in the judgment for reversing the well- reasoned order passed by the learned Additional Sessions Judge, Faisalabad. He has referred to section 367, Cr.P.C., contending that the decision or order, in absence of the reasons, is violative of the provisions of section 367, Cr.P.C., consequently the same could not be said to be judgment in the eye of law. He further submitted that the trial Court has thoroughly examined the evidence produced by the respondent/complainant and after appreciating the material produced by him and after minutely scrutinising the same in accordance with law, has dismissed the complaint, whereas the learned Judge in Chambers, without considering the material, which was insufficient for issuance of the process, reversed the just and proper order passed by the learned trial Court Judge. He further submitted that the private complaint was filed after 14 months of the alleged incident for which F.I.R. No,403 of 1996 was registered at Police Station Saddar, Faisalabad, by Muhammad Boota, appellant No,5, as a counter-blast. He further submitted that names of two persons, namely Muhammad Zahid and Jagoo, mentioned as accused in the private complaint, were subsequently deleted at the instance of respondent Fazal Muhammad when he came to know that the said persons were out of the country on the relevant date of occurrence.

5. The learned counsel for the respondent conceded that the order passed by the learned Judge in Chambers lacked reasons, which was the requirement of section 367, Cr.P.C. However, he submitted that the case be remanded to the High Court for fresh decision with reasons.

6. The learned Additional Sessions Judge in paragraphs 3 and 4 of his order dated 1-12-1998, has observed:-- "3. The perusal of the report shows that the complainant has filed the private complaint against seven persons but in his statement had implicated Boota, Nadeem and Amin. The preliminary witness No,1, namely, Saeed Akhtar implicated Nadeem and Amin only and stated that because of the fire shot (of) Muhammad Amin, Shabbir succumbed to the first short injuries. The preliminary witness No,2 Ghulam Hyder levelled allegation against Saleem, Shabbir, Mehboob and Zahid.

Preliminary witness No,3, namely, Nazir Ahmed implicated Boota, Jaggu, Amin and Nadeem while the preliminary witness No,4 Muhammad Mushtaq levelled allegations against Boota, Nadeem, Amin and Jaggu. It is pertinent to mention here that the complaint is developing cross-version in case registered against him vide F.I.R. No,403 of 1996 for offence under sections 302/324/337- F(i)/34, P.P.C. Registered against Mushtaq alias Kala and rest of the accused out of which Mushtaq is the son of Fazal Muhammad complainant. The case against accused is pending trial and the accused intends to develop a cross-version against the complainant of the said case. The statement of the preliminary witnesses being discrepant for issuance of process to the accused to face their trial, which the tentative assessment of Mr. Farooq Ahmed Khan, learned Judicial Magistrate, Section 30, Faisalabad also has mentioned the discrepancies in favouring the complainant to issue process, to the accused. What the complainant intends to bring a cross- version, which ground was available to the accused while cross-examining the P. Ws.

"4. The tentative assessm ent of the preliminary witness does not suffice to issue process to the respondents/accused. Hence accordingly, the private complaint stands dismissed."

' The learned Judge in Chambers, after narrating the facts and contentions of the counsel for the parties, has observed in the operative part of the order as under; -- ' "Consequently, granting the petition the impugned order is set aside being a nullity in the eye of law and the matter would be deemed to be pending before the trial Court for proceeding therewith in accordance with law."

7. It is true that an aggrieved person has a right to agitate his grievance for redress either before the police or before the Court but in case no justification and proper explanation is given for inordinate delay and the material produced by him is insufficient, Criminal Court would be justified in not issuing the process. It is not that in every criminal case process is to be issued as a matter of course. Each and every complainant is to be scrutinised and the material produced is to be examined and the process is issued only when the material produced is found to be sufficient. In the instant case, the learned trial Court Judge, after considering the material on record, found that there was no sufficient ground for proceeding with the complaint. It was not mere delay on account of which the process was refused by the trial Court. Section 202, Cr.P.C. Provides that on receipt of a complaint either the process is to be issued or for the reasons the same could be postponed and enquiry could be ordered. In the instant case, the enquiry was ordered by the learned trial Court and after the receipt of the enquiry report, the learned trial Court Judge found that there was no sufficient ground for proceeding and consequently dismissed the complaint filed by respondent No,1 as per order dated 1-12-1998. There is no denial to the fact that every one has a right to approach the Court for redress of grievance but the same is subject to condition that 'sufficient ground for issuance of process is made out. In the instant case, we have found that there was no sufficient ground for issuance of the process, considering the facts that earlier also F.I.R.

No,403 of 1996 was got registered by appellant No,5 but after about 14 months counter-version has been brought by respondent Muhammad Fazal. In view of the aforesaid circumstances, we find that the impugned order passed by learned Judge in Chambers is not sustainable in law.

Resultantly, the same is set aside and the appeal is allowed.