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Criminal Revision No. 89 of 1982, decided on 15th September, 1983.

-- S. 435/439 read with S. 561-A-Penal Code (XLV of 1860), S. 302/34-Direct complaint-Number of prosecution witnesses including doctor cited in support of complaint but trial Court examining only complainant and a witness and leaving to examine material evidence and dismissing complaint on ground of delay --Order of dismissal on account of delay, held, misconceived and approach adopted by Court absolutely indefensible and in flagrant violation of law-Case remanded to trial Court for disposal in accordance with law.

-- Ss 435/439 & 561-A-Penal Code (XLV of 1860), S. 302/34--Complaint-Delay in lodging complaint or report, held, not fatal to case as no period of limitation prescribed for filing same.-[Delay].

S. M. Syedain Zaidi for Appellant.

Makhdoom A. Wali for Respondent No. 1.

S. Ziaul Hassan for Respondents Nos. 2 and 5.

Date of hearing: 1st September, 1983.

This is revision application against the order passed by Additional Sessions Judge, Karachi on 8th August, 1982 whereby he dismissed the complaint filed by one Ghulam Mohammed. The facts in brief are that Ghulam Mohammed filed direct complaint under section 302, 34, P. P. C. in the Court of A. C. M. Mahmoodabad, Karachi on 12th August, 1981. The learned A. C. M. forwarded the complaint to the Court of Sessions who transferred the same to VIth Additional Sessions Judge on 18th August, 1981 and on the 18th November, 1981 the statement of complainant was recorded. On 16th January, 1982 Advocate for complainant made an application in which he requested the learned Judge to record the statement of remaining 11 witnesses shown in the complaint, but no order was passed on that application. Once again on 11th May, 1982 another application was filed by complainant and the only statement of P. W. Altaf was recorded. Learned Additional District judge dismissed the complaint on 8th August, 1982 on the ground that complaint is belated one, the police has already submitted challan against one Mukhtar Ahmed. He has further stated in his order that in fact complaint would have been filed at the Police Station or before the Magistrate where the challan was submitted. I have heard Mr. S. M. Sayedain Advocate for applicant, Mr. S. Ziaul Hassan Advocate for private respondents and Mr. Makhdoom Abdul Wali for the State. In support of complaint as many as 13 prosecution witnesses including the Doctors have been cited and also affidavits of all the private witnesses but the learned Additional District Judge examined only complainant and Altaf Hussain during the preliminary enquiry. He has failed to discuss the evidence of these witnesses in the order from which it is clear that he has not applied his mind properly while dismissing the complaint. In all fairness be should have examined the material witnesses before passing the order. In the present case one Khalid was also cited as eye-witness of incident but he has also not been examined. Dismissing the complaint on the ground of delay is misconceived. The delay in lodging the complaint is not fatal. There is no period of limitation prescribed for filing the complaint or lodging the report with the Police. As far the admission or the dismissal of the complaint all he had to consider was that initial statements of complainant and witnesses and see whether sufficient grounds were available to issue process, in other words whether prima facie case has been made out. The approach adopted by him is, therefore, absolutely indefensible and in flagrant violation of law. As a result the impugned order is set aside. The Sessions Judge is directed to hold further enquiry either himself or through another Additional Sessions Judge and dispose it of in accordance with the law.

M. Y. H. Case remanded.

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