' M. BILAL KHAN, J.--- The petitioners, namely, Abdul Rehman, Ghulam Murtaza, Muhammad Nawaz and Shaukat Ali, by filing the instant revision petition have called in question the order dated 22-7- 2003 passed 15y the learned Additional Sessions Judge, Kasur and the subsequent proceedings in consequence thereof.
2. Concisely, the facts giving rise to the instant petition were that Hamid Mahmood, Superintendent, District Jail Kasur made a complaint to the S.H.O., Police Station B-Division, Kasur on 17-11-2002 alleging therein that about 8-50 a.m. He had received a telephonic message from Muhammad Hussain, Assistant Superintendent Jail that two prisoners, namely, Shahzad Ahmad and Khiali Khan had died, whereas two others, namely Zubair son of Allah Yar and Muhammad Ramzan son of Muhammad Sharif had been injured due to severe torture exerted upon them by the jail employees; on receipt of said information, he had reached inside the jail, where Bashir Ahmad Khan, Deputy Superintendent Muhammad Hussain, Assistant Superintendent, Muhammad Mansha Sindhu, Assistant Superintendent, Muhammad Boota, Chief Warden, Muhammad Nazir, Imdadi Chakkar Central Tovyer, Umar, Warden Incharge, Hakumat, Head Warden were present; they told him that in the morning at 7-25 O'Clock, four prisoners had been brought by the police to Kasur Jail from Sahiwal Jail, whose names were Khiali Khan son of Badshah, Muhammad Ramzan son of Muhammad Sharif, Shahzad son of Shamshad, and Zubair son of Allah Yar, when the police went back after leaving the said prisoners the latter were made to stay in the porch for legal process; during their search, on their adopting a rude posture, the guard employees started beating them up and thereafter they were locked up in a room; after a short while, when the condition of the prisoners deteriorated, the doctor was called, who after examining the said persons told that Khiali Khan and Shahzad Ahmad had expired. It was further alleged that when the complainant reached the spot, two prisoners were lying dead, whereas the other two were being checked up by the doctor; the latter two were semi-conscious and had informed that they had been severely tortured by the jail employees. According to the complainant, it all happened due to the negligence, carelessness and the torture inflicted upon them by the aforesaid jail employees. Resultantly, F.I.R.
No,344, dated 17-11-2002, stood registered at the police station against the accused mentioned in the complaint for offence under sections 302/148/149, P.P.C.
' After registration of the case, the investigation commenced, during the course whereof the accused, namely, Ghulam Murtaza, Muhammad Nawaz, Shaukat Ali and Abdul Rehman had been found guilty, whereas Muhammad Boota and Nazir Ahmad having been found innocent had been placed in column No,2 of the report under section 173, Cr.P.C. Which had been submitted before the trial Court after addition of section 324, P.P.C. In the array of offences mentioned in the F.I.R.
Thereafter, a supplementary report under section 173, Cr.P.O. Had been submitted on 10-6-2003, wherein section 316, P.P.C. Was inserted instead of section 302; P.P.C. While rest of the penal sections remained the same. The learned Judicial Magistrate Section 30, Kasur, vide his order, dated 19-6-2003, proceeded to forward the case to the learned Sessions Judge, Kasur while observing that it was revealed from perusal of the record that prima facie a case under sections 302, 324, 148, 149, P.P.C. Had been made out against the accused persons. Thereafter the case had been entrusted to the learned Additional Sessions Judge, Kasur, whose order, dated 22-7-2003, is being sought to be set aside.
3. This petition was admitted to regular hearing to consider the plea of the petitioners that the order, dated 22-7-2003, whereby they had been summoned by the learned trial Court to face trial was illegal, as there was no material whatsoever available on the record to connect them with the crime.
4. The learned counsel for the petitioners contended that there is no material worth its name against the present petitioners, whereas the three jail officers for the summoning of whom the application had been turned down were duly named in the F.I.R. As well as in the statements of the witnesses under section 161, Cr.P.C.; that the said three jail officers were also named by the injured prosecution witnesses, namely, Zubair and Muhammad Ramzan; that act of summoning the petitioners was wholly discriminatory inasmuch as the learned Additional Sessions Judge had refused to summon those accused against whom there was ample material available on the record. He finally argued that the report of the Magistrate, who had conducted the judicial inquiry, was not available on the record at the time when the accused had been summoned. In support of plea he relied on Haji Mehboob Khan and another v. The State 2002 PCr.LJ 340. He also relied on Zulfiqar Ali Virk and others v. D.I.-G. And others 2000 M LD 1273 to contend that report of the inquiry under section 176, Cr.P.C. Could not determine guilt or innocence of the accused.
5. On the other hand, the learned counsel for the applicant in Criminal Miscellaneous No,2112/M of 2003 argued that the mere omission of the name of the Magistrate, who conducted the judicial inquiry in the list of witnesses was of no significance and would not disqualify the Magistrate from appearing as a witness, if otherwise his evidence was necessary for a just decision of the case; that the mere fact that the report of the judicial inquiry had not been appended with the report under section 173, Cr.P.C. Would also not make.Much difference in that certain excerpts from the report of judicial inquiry and the roles attributed therein to the accused persons find mention in the report under section 173, Cr.P.C. In considerable detail. He argued that section 173, Cr.P.C. Only requires (i) setting forth the names of the parties, (ii) the nature of information and (iii) the names of the persons, who appear to be acquainted with the circumstances of the case. According to the earned counsel, all necessary requisites of section 173, Cr.P.C. Were present in the report; that the summoning order was valid inasmuch as from the tenor of the same it appears that the learned trial Court had perused the report of the judicial inquiry and had thoroughly acquainted itself with the same; that the charge in a criminal case can even be framed on presumptions and in this connection he relied on cases, Superintendent and Remembrancer of Legal Affairs, West Bengal v.
Anil Kumar Bhunja and others AIR 1980 SC 52 and Muhammad Akbar Dar and others v. State of Jammu and Kashmir and others AIR 1981 SC 1548. He also relied on the case of Waqarul Haq alias Nithoo and another v. The State 1988 SCM R 1428 to contend that the fact that the accused persons had been placed in column No,2 of the challan does not mean that they cannot be summoned by the trial Court.
6. I have heard the learned counsel for the parties at considerable length and have also gone through the record available on the file. It has straightaway been observed that the order, dated 22-7-2003, through which the petitioners had allegedly been summoned by the learned trial Court to face trial, had been passed on the application moved by Shamshad Ali, father of Shahzad deceased for summoning of the accused, namely, Bashir Ahmad Khan, Muhammad Hussain and Muhammad Mansha to face trial, and the said application had been turned down with the following observations:-- "Although the accused persons are nominated in the F.I.R. But the fact remains that vide statements under section 161, Cr.P.C. Dated 10-12-2002 injured. P.Ws. Muhammad Ramzan and Muhammad Zubair, they have not implicated the accused persons, rather they have stated that the said accused persons did not cause any injury to anybody. During investigation they have been declared innocent. The said accused persons were neither placed in column No,2 nor column No,3 of the report under section 163, Cr.P.C. As per my view sufficient incriminating material is not available against the said accused persons. They cannot be summoned to face the trial."
' It had further been observed by the learned trial Court that:- "If some evidence is brought on file against the above said accused persons after framing of charge, then prosecution shall be at liberty to move again for summoning of above said accused to face trial."
' However, it is revealed from perusal of the copy of order-sheet, available on the record, that it was the order, dated 14-7-2003, whereby the learned trial Court after hearing the learned counsel for the parties on the question of nature of accusations and examining the record available before it had proceeded to summon the petitioners to face trial.
7. Interestingly the order, dated 14-7-2003 has not been challenged and this petition could be dismissed on the short ground that the said order has not formally been challenged. However, since the matter has remained pending in this Court for a considerable length of time and the petitioners are aggrieved of the order whereby they have been summoned to face trial, therefore, I would also dilate on the order dated 14-7-2003 whereby they have been summoned to face trial.
8. The perusal of the record shows that the fact that a judicial inquiry had been held in the matter in which specific roles had been attributed to the accused persons vividly finds mention in the report under section 173, Cr.P.C. In this scenario even if the report of the judicial inquiry had not been appended with the challan, it would make hardly any difference. The order, dated 14-7-2003, whereby the petitioners had been summoned to face trial, has been gone through by me minutely.
The perusal whereof clearly shows that although the petitioners had been placed in column No,2 of the report under section 173, Cr.P.C. Yet, the learned Additional Sessions Judge had chosen to summon them to face trial. He had also made reference in extenso to the report of the judicial inquiry dated 30-11-2002. The Magistrate, who had conducted the inquiry had gone into the incident in detail and had held certain jail officials including the petitioners to be liable for the incident. By summoning the petitioners, the learned trial Court has not committed any illegality. In this connection, the case of Safdar Ali v. Zafar Iqbal and others 2002 SCM R 63 can be referred to with some advantage, wherein the Honourable Supreme Court had held that the trial Court can take cognizance of an offence even in case of negative report submitted by the police the accusation is baseless and no case is made out against the delinquents and that the trial Court can summon the accused placed in column No,2 of the challan to face trial. The Honourable apex Court went on to add that there was no requirement that at first instance some evidence should be recorded to ascertain as to whether prima facie case is made out or not. In this case, the Honourable apex Court has once again reiterated the legal position viz. That Magistrate while taking cognizance under section 190(1)(b), Cr.P.C. On a police report takes cognizance of the offence and not merely of a particular person charged in the report as an offender and as such he can issue process against other persons, who also appear to him to be concerned in the commission of the offence on the basis of the police report and other material placed before him.
In view of the authoritative pronouncement of the Honourable Supreme Court in Safdar Ali's case (supra), the precedents cited by the learned counsel for the petitioner will not advance his case.
The mere fact that some of the accused persons, whose names find mention in the judicial inquiry report, were not summoned by the learned Additional Sessions Judge will not entitle the petitioners to claim that they too ought not to have been summoned. As already stated elsewhere, the learned Additional Sessions Judge had given valid reasons for not summoning the said accused persons.
9. For what has been discussed above, there being no merit in this petition, the same is dismissed.
10. The learned trial Court is directed to proceed with the trial in accordance with law.