' This petition is directed against the order dated 29-5-2003 whereby the application of the complainant-petitioner seeking summoning of Shahzad Ullah Khan-respondent No,2 as accused in case F.I.R. No,157/98 registered at Police Station Kot Samaba on 24-7-1998 for an offence under section 302, P.P.C. Was dismissed.
2. The relevant facts leading to this petition are; that Arshad Ullah Khan father of respondent No,2 Shahzad Ullah Khan was sent up to face trial for causing the murder of Muhammad Hanif in the above noted case F.I.R. On 23-10-2001 statement of Muhammad Shafiq P.W.2 was recorded who stated that Arshad Ullah Khan, principal accused, was sitting in a car which was being driven by his son Shahzad Ullah Khan-respondent No,2. He further stated that both Shehzad and Arshad Ullah raised Lalkara that no one should escape and thereafter Arshad Ullah who was armed with a rifle started firing which caused the death of his brother Muhammad Hanif. After recording of examination-in-chief on the application of the petitioner Shahzad Ullah Khan was summoned to face trial vide order dated 23-10-2001. This order was challenged through Criminal Revision No,154 of 2001 which was decided by my learned brother Syed Sakhi Hussain Bukhari, J., on 16-7-2002 with the concurrence of the learned counsel for the parties in the following terms:-- "The learned trial Court is directed to record statement of P.W. Muhammad Shafique and provide opportunity of cross-examination to the petitioner and then after going through relevant record pass order regarding summoning of the petitioner. The parties are directed to appear before trial Court on 20-7-2002. The case was registered on 24-7-1998 and the same is still pending. Learned counsels for the parties have no objection if direction is issued to the trial Court to decide this case within six months. So trial Court is directed to decide this case within six months (till 15-1-2003)."
' Muhammad Shafique P.W.2 was recalled for the purpose of cross-examination on 4-10-2002. He was cross-examined by the learned counsel appearing on behalf of Arshad Ullah Khan on 4-10- 2002 and 5-10-2002. Despite the fact that Shahzad Ullah Khan Respondent was present in Court he refused to cross-examine Muhammad Shafiq and his statement was recorded on that behalf. On the same date i,e, 5-10-2002 the complainant-petitioner submitted fresh application with prayer to summon Shahzad Ullah Khan as accused. This application was fixed for 12-10-2002 for argument.
On the said date, Arshad Ullah Khan Accused moved an application for summoning the Investigating Officer. Thus, the case was adjourned to 19-10-2002 for arguments on the application submitted by the petitioner and the application submitted by Arshad Ullah Khan. On 19-10-2002 Arshad Ullah Khan submitted power of attorney of Mian Muhammad Tayyab Wattoo, Advocate and sought adjournment. The request was allowed and the case was adjourned to 24-10-2002. On that date, Mian Muhammad Tayyab Wattoo, Advocate learned defence counsel withdrew the application for summoning of investigating officer and the case was fixed for argument on the application of the petitioner-complainant relating to summoning of respondent No,2 for 30-10- 2002.
However, the learned trial Court vide order dated 23-11-2002 held that the application for summoning of respondent No,2 as accused will be decided after cross-examination of Muhammad Shafiq P.W. By Shahzad Ullah Khan respondent and recording of statement of Investigating Officer. This order was challenged by the petitioner through Criminal Revision No,156 of 2002 which was decided on 7-5-2003 by my learned brother Syed Sakhi Hussain Bukhari, J., with the concurrence of the parties in the following terms:- "With the concurrence of learned counsel for the parties, this revision petition is accepted, impugned order is set aside and learned trial Court is directed to allow respondent No,1 (Shahzad Ullah Khan) to cross-examine P.W.2, Muhammad Shafique only, examine the relevant record (available on the file) and then pass order regarding summoning of respondent. The respondent shall cross-examine said P.W. On 17-5-2003. It is made clear that if respondent No,1/accused failed to cross-examine the witness on the said dated (17-5-2003), it would be presumed that he does not want to cross-examine said witness."
' Thereafter, as stated above the learned trial Court vide order, dated 29-5-2003 dismissed the application of the petitioner seeking summoning of respondent No,2 as accused. Hence, this petition.
3. For ready reference the relevant para. Of the impugned order is being reproduced:-- "Since the complainant has not yet appeared on whose application the case was registered. The Investigating Officer has not yet come to justify the circumstances of the case to make out prima facie case against Shahzad Ullah. At very primary stage in response to Writ Petition No,15904 of 1998 Honourable Chief Justice; Lahore High Court, Lahore has discussed and observed the particular circumstances of the case wherein he was released within four days of his apprehension and he was granted bail by his Lordship. I am not inclined to discuss the entire material on record which may prejudice the case of either party. However, on the 'tentative assessment of the relevant record and considering the evidence on record and observation of Honourable Chief Justice, Lahore High Court, Lahore, it would be arbitrary to summon Shahzad Ullah Khan to face agony of trial at this stage only for the satisfaction of the whims of either party. So, the application of the complainant for summoning Shahzad Ullah Khan is dismissed. The other direction issued by Honourable High Court that the matter be decided within four months, so the prosecution evidence be summoned for 5-6-2003 for evidence so the matter be concluded in the light of the orders of the Honourable High Court."
4. The learned counsel for the petitioner has submitted as follows:--
(i) that soon after the registration of case supplementary statement of complainant-petitioner Begum Haleema Khan was recorded wherein respondent No,2 was implicated as abettor;
(ii) that after the registration of case statements of P.Ws. Muhammad Shafiq and Jamal Abdul Nasir were recorded wherein it was stated that the car was being driven by respondent No,2 and that he raised Lalkara;
(iii) that P.W.2 Muhammad Shafiq who was also allowed to be cross-examined by respondent No,2 has implicated the respondent in clear terms;
(iv) That the learned trial court has based its order on the observations made by this Court while hearing Writ Petition No,15904 of 1998 and were not part of evidence; and
(v) that sufficient evidence was available against the respondent and, thus, the order passed by the learned trial Court was not sustainable.
5. Conversely, the learned counsel appearing on behalf of respondent No,2 submitted that the name of the respondent does not figure in the F.I.R. Which was registered on the written application of the petitioner-complainant which means that the respondent was not present at the scene of crime; that the name of the respondent does not figure in the, documents prepared by the police during investigation of the case uptill 2-8-1998; that the respondent was arrested by the police on 4-8-1998 without any legal justification, thus, Writ Petition No,15904 of 1998 was moved before this Court for production and release of respondent Shahzad Ullah Khan. On 5-8-1998, Shahzad Ullah Khan was produced before this Court and in order to justify the arrest the police fabricated the evidence in the shape of supplementary statement of complainant and statements of P. Ws.
Muhammad Shafiq and Jamal Abdul Nasir; that the matter was investigated by high-ranking police officials who found the respondent Shahzad Ullah to be innocent and that the order passed by the learned trial Court was justified in the circumstances of the case. The learned counsel has placed reliance on the case of Shaukat Ali v. State 1995 PSC (Cr1.) 547 (FSC), Shaukat Ali and 2 others v. State 1995 PCr.LJ 1749 and Haji Muhammad Aslam v. The State 1986 PCr.LJ 1442.
6. I have heard the learned counsel for the parties and have also gone through the relevant record of the case. Perusal of the provisions of section 204, Cr.P.C. Reveals that all that is required is material upon which an opinion can be formed by the Court regarding availability of sufficient ground for proceeding against an accused person. The name of respondent No,2 along with his role has been mentioned in the supplementary statement of the complainant, recorded on the very date the case was registered. Statements of eye-witnesses Muhammad Shafiq and Jamal Abdul Nasir were recorded after registration of case. Both the witnesses have implicated the respondent Shahzad Ullah Khan in their statements. There is nothing on record to suggest that the statements of P. Ws. Muhammad Shafiq and Jamal Abdul Nasir were tampered with. The above noted statements were recorded on 24-7-1998 after the registration of case and it was on the basis of available evidence that Shahzad Ullah Khan was arrested on 4-8-1998. It is also noteworthy that the statement of Muhammad Shafiq was recorded by the learned trial Court as P.W.2 wherein he implicated respondent Shahzad Ullah Khan. With the concurrence of the parties respondent No,2 was allowed to cross-examine Muhammad Shafiq. During cross-examination Muhammad Shafiq stuck to his statement as against respondent No,2. The name of the respondent Shahzad Ullah Khan has been placed in Column No,2 of the challan submitted on 3-11-1998 and 23-7-2000. The learned trial. Court is required to apply its mind to the material available before him and needless to say is not bound by the opinion of the Police Officer. In the case of Khush Bakht-ur-Rehman v.
State 1985 SCM R 1314 the apex Court upheld the order of the trial Court whereby the accused who were placed in Column No,2 of the challan was summoned. It was also observed by the Honourable Supreme Court that the Court acquired jurisdiction over all persons involved and not only over persons against whom challan is submitted. The above noted view was reaffirmed by the apex Court in Safdar Ali v. Zafar Iqbal 2002 SCM R 63.
7. The case-law cited by the learned counsel for the respondent is distinguishable and does not apply to the circumstances of the instant case as one eye-witness who implicated the respondent has been recorded by the learned trial Court. A perusal of the impugned order reveals that the learned trial Court instead of discussing material available on record against the respondent based his order on the observations made by this Court in Writ Petition No,15904 of 1998 which was converted into bail application. The observation made by this Court during hearing of the bail application hardly constitutes any evidence. The learned trial Court has also failed to take notice of the fact that the observations were made when no evidence had been recorded. The scenario has changed since then as not only the statement of an eye-witness has been recorded but respondent was also allowed to cross-examine the eye- witness despite the fact that he was not summoned as accused in the case. In the circumstances I set aside the order, dated 29-5-2003 passed by the learned Additional Sessions Judge, Rahimyar Khan. The application of the petitioner would be deemed to be pending before the learned trial Court. The same would be decided on the basis of the material available on the record of the case within two weeks of the receipt of this order under intimation to the Deputy Registrar of this Bench.
The record of the learned trial Court be remitted forthwith. The instant revision petition is allowed.