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Criminal Revision No. 8 of 1979, heard on 1^st April, 1979.

- -- S. 439---Complaint of petitioner under S. 307, P.P.C. dismiss ed by Sessions Judge on grounds (i) that petitioner in order to save his skin very wisely managed his plea of self-defence to counterblast State case ; (ii) instead of seeking remedy with police petitioner filed belated complaint direct in Court-Approach of Sessions Judge, held, absolutely indefensible and in flagrant violation of law and lower Court could not travel beyond record of one case to another and its function confined to see whether prima facie case made out-Order set aside, in circumstances. [Revision (criminal)].

Azizullah K. Shaikh for Applicant.

Muhammad Hayat Junejo and M. H. Shah for Respondents.

Abdul Saltar Shaikh Addl. A.-G. by M. H. Shah for the State.

Dates of hearing : 31st March and 1st April 1979.

The circumstances in which this Revision application has been filed, in brief, are as follows :--

1. The Applicant is a Jeweller, having a shop on Zaib-un-Nisa Street, Karachi. He owns an adjacent plot, on Clarke Street, where he was raising a multi-storeyed building. Thereafter is situated a furniture shop, owned by one Ismail Allah Rakha. The latter has a son by the name of Tanweer. Ismail Allah Rakha had filed a suit in the District Court against the Applicant, for the infringement of his easement rights Matters took an ugly turn on 229th October 1978, when there occurred a shooting incident in which Ismail Allah Rakha received some injuries. The report of the incident having been lodged, a case under section 307/34, P. P. C. came to be registered against the Applicant and some other persons. Ii is said that the applicant tried to lodge a counter report, but having failed in his attempt, sent a telegram to the S.H.O. but latter evinced no interest, whatsoever. He was therefore constrained to file a direct complaint under sections 307/452/34, P.P.C. in the Court of the A. C. M., Saddar, Karachi against Ismail Allah Rakha, Tanweer and some other persons, on 14th November, 1978. As the case was triable by the Court of Sessions, the A. C. M. by his order dated 15th November 1978, forwarded the same to the Sessions Court, for taking cognizance. The VIth Additional Sessions Judge, after recording the statement of the Applicant sent the papers to the Ilaqa Magistrate, for holding prelimi nary inquiry, in the course of which some witnesses came to be examined. The learned Additional Sessions Judge, after perusing the report and hearing the Counsel for the Applicant, dismissed the complaint under section 203, Cr. P. C. resulting to this revision application. The accused in the case were not impleaded here but it appears from the record that notices were issued to Ismail Allah Rakha and, Tanweer, who are being represented here by M/s. M. H. Shah and Mohammad Hayat Junejo respectively.

2. The order clearly show: that the; papers of the counter case were also before the Additional Sessions Judge as it happened to tie fixed on that day, and were freely used.

3. The dismissal of the complaint is based on two reasons. Firstly, that " the complainant has very wisely managed his plea of self defence to be counter blast of the State case, in order to save his skin at this stage, and to harass the complainant party in the main case, in order to compel them face trial alongwith him." Secondly, that the applicant did not care to seek his remedy with the police and tiled a belated complaint directly in the Court "(the delay involved being 17 days and as found by him" without explanation").

4 As for the earlier proposition, all that need be said is that it was not open to the Additional Sessions Judge to import his knowledge of the case pending against the Applicant and others. The correct position is that even if he were trying the counter-case, he could not travel in his judgment beyond the record of one to the other, and his findings in both the cases had to be entirely self-contained. As for the admission or the dismissal of the complaint, all he had to consider was the initial state ment of the complainant and the report of the inquiry officer and see whether sufficient grounds were available to issue process ; in other words whether a prima facie case had been made out. The approach adopted by him is, therefore, absolutely, indefensible and in flagrant violation of law.

5. Even the delay in the lodging of the complaint is not fatal. There is no period of limitation prescribed for filing a complaint or even lodg ing a report with the police authorities. Mr. Azizullah Shaikh has referred to an unreported case by a Division Bench of this Court in which this point was considered. It is hardly necessary to refer to the same, trite principle of law as it is

6. Mr. M. H. Shah urged that the complaint itself was not in accordance with law, as the gist of the evidence proposed to be given by the various witnesses had not been furnished in the complaint. Other wise too, there was hardly any sufficient ground to issue process and, therefore, it will be hardly proper for the High Court to interfere with the impugned order, in the exercise of its revisional jurisdiction. He cited a number of authorities in support of the latter contention. There was also some authorities cited by Mr. Muhammad Hayat Junejo to the effect that the accused need not be harassed by facing frivolous proceedings. Mr. Abdul Sattar Shaikh, Additional Advocate General, lent his support to this contention. To obviate any prejudice in the matter, I would refrain from making any comments at all in that regard. All I need say is that the impugned order is thoroughly misconceived and based on a misapprehension of law, and should not therefore be allowed to stand.

7. As a result, the impugned order is set aside. The Sessions Judge will now hold further inquiry either by himself or through another Additional Sessions Judge other than Mr. Soomro, and dispose it of in accordance with law.

Application accepted.