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Criminal Revision No. 563 of 1968, heard on 7th May 1984.

‑‑‑Ss.69 & 438‑‑Summons, service of‑‑Service by registered postcard, held, sufficient intimation of date of hearing.

Mst. Ghulam Fatima v. Qamar Hussain and five others 1978 S C M R 185 rel.

---S.438‑‑Penal Code (XLV of 1860), S. 307/148/149‑‑Refusal of Magistrate to summon accused‑‑Names of accused clearly given in first information report and were stated to have accompanied other co‑accused to house of complainant where they attempted to abduct his sister and on his objection opened fire and inflicted gunshot injuries on two persons and blunt weapon injuries on others‑‑Prosecution witnesses appearing in court and making statements against accused‑‑Accused joining unlawful assembly of ten others armed with Dangs and guns and had a common intention of abducting girl forcibly from house of her brother‑‑Prima facie they had vicarious liability for inflicting injuries by gunfire in respect of two injured persons and had also individual and vicarious liability for injuries on others‑‑Accused, held, should have been summoned as accused persons to face trial in circumstances‑‑Order of Magistrate declining to summon accused set aside.

Ch. Abdul Aziz for the State.

Nemo for Respondent.

Date of hearing: 7th May, 1984.

This is a reference under section 438, Cr.P.C. by the District Magistrate, Gujranwala, recommending that the order of the Magistrate in refusing to summon the respondents Rehmat Shah son of Jewan Shah, Abbas Shah son of Manzoor Hussain, Ali Hussain son of Shah Muhammad and Jewan Shah son of Karam Elahi, be set aside and they may be summoned to face the trial.

2. The facts of the case are that according to the F.I.R. the respondents alongwith ten others, including Mehr Din father of Mst. Sughran, armed with guns and Dangs, came to village Thatha Joyan and attempted to take away Mst. Sughran who was residing in the said village with her brother Muhammad Aslam. Bashir and his father Nizam Din resisted, whereupon Manzoor and Nawaza fired at them with their respective guns and caused them injuries. The F.I.R. was registered at the instance of Nizam Din under section 307/148/149, P.P.C. at Police Station Hafizabad. However, the police declared the respondents and Manzoor as innocent.

3. Nizam Din made an application before the learned trial Magistrate for summoning the respondents and said Manzoor. The learned Magistrate by his order dated 21‑7‑1967, summoned Manzoor only and declined to summon the respondents on the ground that it was only Manzoor who had been mentioned in the F.I.R. to have fired and the rest of the accused had not been attributed any active part in the occurrence.

4. In revision filed against this order, the District Magistrate has made the above‑mentioned recommendation. It is based on the ground that on perusal of the record he had found that P.W.4 Nizam Din, P.W.6 Bashir and P.W.8 Kaloo have mentioned the names of the respondents in their statements made in the Court. He also observed that they are named in the F.I.R.

The respondents in this revision were summoned. They were originally served in 1970. They never engaged any counsel. The case remained pending since then. Now registered postcards had been sent to them directing them to appear today to pursue their case. They have not appeared. As held in Mst. Ghulam Fatima v. Qamar Hussain and five others 1978 S C M R 185, sending of a registered postcard is to be deemed to be sufficient intimation to respondents of today's date of hearing. Accordingly I proceed to look into the case and adjudicate upon the matter with the assistance of the learned counsel for the State.

5. I have looked into the F.I.R. The names of the respondents are clearly given 'in it. They are stated therein to have accompanied the other co‑accused on 26‑5‑1966 to the house of Muhammad Aslam in village Thatha Joyan, Tehsil Hafizabaid, District Gujranwala, and had attempted to take away Mst. Sughran Bibi from the house of Muhammad Aslam, her brother and on the objection of complainant Nizam Din and his son Bashir, Manzoor and Nawaza had started firing with their guns and had inflicted injuries on the persons of said Nizam Din and Bashir. I have perused the statements of the witnesses who appeared before the Court. Nizam Din P.W.4, Bashir P.W. 5 and Kaloo P.W.8 have named the respondents in their statements made in the Court. They alleged that at the time of the occurrence the accused who had come together were armed with guns and Dangs and had lifted Mst. Sughran Bibi and had started to take her oaway when she was rescued. They also stated that Kaloo and Sardar witnesses were given injuries by accused with Dangs and Sotas. I)r. Muhammad Hafiz Khan, Medical Officer, Civil Hospital, Hafizabad, sappeared as P.W.1 and gave evidence that besides Nizam Din and Bashir, who had gunshot injuries, Kalool and Sardara had respectively 5 and 10 blunt weapon injuries on their persons.

From the circumstance that respondents while armed with Dangs had joined an unlawful assembly of ten other persons who were also armed with guns and Dangs and had gone to forcibly abduct Mst. Sughran, appears to show that they had common intention of taking away Mst. Sughran forcibly from the house of her brother. Mst. Sughran had been shown by evidence to have been actually lifted for being taken away. They, therefore, appear to be liable for this attempt at abduction. Prima facie, they had also vicarious liability for infliction of injuries by gunfire by Manzoor and Nawaza and individual and vicarious liability for infliction of injuries on Kaloo etc. The District Magistrate, Gujranwala, was, therefore, correct in observing that respondents should also have been summoned as accused persons.

6. For the above reasons, I accept the reference, set aside the order dated 21‑7‑1967 of the Magistrate declining to summon the respondents and direct that the said four respondents be also summoned D to stand their trial. I further direct that file be sent immediately to the lower court so that further proceedings be taken by it in accordance with law.

M.Y.H. Reference accepted.

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