' M. BILAL KHAN, J.---The petitioner, namely, Shahzad Ullah Khan son of Arshad Ullah Khan, by filing the instant revision petition has called in question the order, dated 15-12-2004 passed by the learned Additional Sessions Judge, Rahim Yar Khan, whereby he had been summoned to face trial in a criminal case arising out of F.I.R. No.157 of 1998, dated 24-7-1998 registered at Police Station Kot Samaba, District Rahim Yar Khan for an offence under section 302, P.P.C.
2. The brief facts of the prosecution case are that Begum Haleema Khan/ respondent No.1 lodged the above-referred F.I.R. Alleging therein that on 24-7-1998 at 6-30 p.m. Arshad Ullah Khan (father of Shahzad Ullah Khan) had arrived in a car bearing Registration No.LXF-5632 and stopped the vehicle; when the same reached near the first informant and her brothers Muhammad Hanif Khan, Muhammad Shafiq Khan and Jamal Khan, he got down from the car while carrying rifle .222-bore and raised a Lalkara that nobody will be allowed to escape and simultaneously started straight firing; Muhammad Hanif suffered a fire-shot and fell down in a seriously injured condition.
According to the first informant, she and others, who were empty-handed, unsuccessfully tried overpower the accused; injured Muhammad Hanif succumbed to his injuries at the spot.
' The motive, according to the F.I.R., was that Arshad Ullah Khan being a stepson of the complainant had never reconciled with her marriage with his father Ghazanfar Ullah Khan and that on account of this grudge, he had carried out several murderous assaults on his father and had been convicted in one of the cases under section 307, P.P.C. And sentenced to two years imprisonment.
The first informant further stated in the F.I.R. That there was also litigation pending with regard to the agricultural land.
3. It may be added that according to the prosecution the first informant had made a supplementary statement within half an hour of the registration of the F.I.R. Wherein she had implicated Shahzad Ullah Khan, the present petitioner, as an accused alleging that he was the one, who had been driving the car, and on his Lalkara Arshad Ullah Khan had fired at them.
4. The matter had been investigated at different levels and Shahzad Ullah Khan, the petitioner, was found to be innocent in all rounds of investigations. The petitioner had all along maintained that on 2-8-1998, local police from Police Station Kot Samaba, District Rahim Yar Khan had conducted a raid at Lahore to effect the arrest of Arshad Ullah Khan, who was not available and instead they took him into custody. The petitioner claimed that he was not an accused at that time. His detention had been challenged by her mother Mst. Salma Begum by means of a habeas corpus petition (W.P. No.15904 of 1998), which had been placed before the then Hon'ble Chief Justice of this Court and his Lordship had been pleased to issue notices to the police officials for production of Shahzad Ullah Khan on 5-8-1998. Pursuant thereto, the then Superintendent of Police, Rahim Yar Khan produced Shehzad Ullah Khan detenu and took the stand that he was also an accused in case F.I.R. No.157 of 1998, which had been registered against his father Arshad Ullah Khan on the basis of a supplementary statement of the first informant. The then Hon'ble Chief Justice being dissatisfied with the explanation offered by the police officials converted the petition into a bail application (Criminal Miscellaneous No.4100/B/1998) and had been pleased to release the petitioner on bail vide order, dated 6-8-1998. The relevant portion of the order is reproduced as under:-- "Admitted facts are that the petitioner is not named in the F.I.R. As an accused. The police came from Rahimyar Khan to effect the arrest of Arshad Ullah Khan father of the petitioner and not Shahzad Ahmad petitioner. When confronted with this situation the police official present in Court could not furnish any explanation. I have noticed that in the inquest report, which was admittedly prepared after recording of supplementary statement, there is no mention of the present petitioner. Even in the recovery Memos. Prepared at the spot, there is no mention of section 34, P.P.C. In the case. In the case diaries even till today section 34, P.P.C. Has not been applied. An application was moved before Assistant Director Immigration against Arshad Ullah Khan on 31-7- 1998. Even on that application neither the name of the present petitioner was mentioned nor offence was shown as S.302/34, P.P.C. There appears to be force in the assertion of the learned counsel for the petitioner that the police when learnt that a habeas corpus petition has been filed against them, thereafter they hurriedly prepared supplementary statement and showed his arrest in the said case. If the police had come to Lahore for effecting the arrest of Shahzad Ullah Khan petitioner this fact should have been mentioned in the daily register of Police Station South Cantt.
The only allegation against him is that he was accompanied with his father and in such circumstances nothing is to be recovered from him. The bail application is accepted. Petitioner is allowed bail provided he furnishes bail bonds in the sum of Rs.25,000 (rupees twenty-five thousand) with two sureties each in the like amount to the satisfaction of Deputy Registrar (Judi.) of this Court."
5. Final report under section 173, Cr.P.C. Was submitted wherein petitioner's name existed in Column No.2. The learned trial Court took cognizance and summoned Arshad Ullah Khan, the nominated accused of the F.I.R. However, after recording the statement of Muhammad Shafiq Khan as P.W.2, the learned trial Court summoned the petitioner to face trial vide order, dated 23-10-2001. The said order had, however, been assailed by the petitioner before Bahawalpur Bench of this Court through Criminal Revision No.154 of 2001, which had been accepted vide order, dated 16-7-2002 and the impugned order, dated 23-10-2001 had been set aside. The learned trial Court was directed to provide an opportunity to the petitioner to cross-examine Muhammad Shafiq Khan P.W.2 and pass an appropriate order thereafter. The present petitioner, however, again did not cross-examine the witness, who was in fact subjected to cross-examination by co-accused Arshad Ullah Khan, whereupon the complainant (respondent No.1) moved another application for summoning the petitioner, but his request was turned down vide order, dated 23-11-2002 by the learned trial Court observing that the said application would be decided after cross-examination of the witness by the petitioner.
6. Mst. Haleema Khan/respondent No.1 feeling aggrieved of the said order filed a Criminal Revision No.156 of 2002/BWP at Bahawalpur Bench of this Court, which had also been placed before my learned brother Syed Sakhi Hussain Bokhari, J., on 7-5-2003. His Lordship maintained previous order, dated 16-7-2002 passed in Criminal Revision No.154 of 2001 with the direction to the learned trial Court to allow the present petitioner to cross-examine Shafiq Khan P.W.2 only and to examine the relevant record available on the file and then pass an order regarding the summoning of the present petitioner. Pursuant to the said order, Shafiq Khan P.W.2 had been cross-examined. The learned trial Court, however, after going through the evidence and the relevant record dismissed the application of Mst. Haleema Khan/respondent No.1 and declined to summon the present petitioner as an accused vide order, dated 29-5-2003. Mst. Haleema Khan/respondent No.1 aggrieved of order, dated 29-5-2003 challenged the same through Criminal Revision No.90 of 2003, which had been placed before my learned brother Muhammad Farrukh Mahmud, J. At Bahawalpur Bench of this Court. The said revision petition (Criminal Revision No.90 of 2003) was allowed vide order, dated 25-11-2004. It was directed that application of the revision petitioner would be deemed to be pending before the learned trial Court and the same would be decided on the basis of material available on the record within two weeks of the receipt of the said order under intimation to the Deputy Registrar (Judi) of this Court.
7. As per order of this Court, dated 25-11-2004 in Criminal Revision No.90 of 2003, the matter was once again placed before the learned trial Court, which after hearing both the parties allowed the application filed by the complainant Mst. Haleema Khan vide order, dated 15-12-2004. The last paragraph of the said order reads as under:-- "I could not go beyond the observation of the Hon'ble High Court as that is required is material upon which opinion can be found regarding availability of sufficient ground for proceedings against the said accused Shahzad Ullah Khan on the basis of material on record, i.e. Statements of eye-witnesses Shafique Khan and Jamal Abdul Nasir were recorded by police on the same day of occurrence who nominated Shahzad Ullah Khan accused and Muhammad Shafique P.W.2 was cross-examined wherein he implicated Shahzad Ullah Khan accused. So, prima facie, I humbly opine to summon said accused Shahzad Ullah Khan son of Arshad Ullah Khan for the purpose of facing trial of this case. Hence, application of the complainant is disposed of accordingly, under intimation to the learned Deputy Registrar, Lahore High Court, Bahawalpur Bench."
8. The petitioner through the instant revision petition has challenged the above-referred order, dated 15-12-2004 passed by the learned Additional Sessions Judge.
9. The learned counsel for the petitioner has argued that the present petitioner was not nominated as an accused in case F.I.R. No.157 of 1998, which was promptly lodged by Mst. Haleema Khan/respondent No.1 through a written complaint, wherein even minute details of the event have been mentioned including the colour and registration number of the car allegedly used in the occurrence; that even the description of weapon carried be Arshad Ullah Khan accused had also been mentioned by the complainant; that it is strange that even then the complainant failed to nominate the petitioner in the F.I.R.; that the prosecution version that the present petitioner was implicated as an accused through a supplementary statement made by the complainant within half an hour of the registration of the F.I.R. Is falsified by the prosecution own record, inasmuch as the petitioner's name does not feature in the inquest report, which had admittedly been prepared after the recording of the supplementary statement; that even in the recovery memo. Prepared during the first visit of Investigating Officer to the place of occurrence, there is no mention of section 34, P.P.C.; that an application had been moved to Assistant Director Immigration against Arshad Ullah Khan on 31-7-1998, i.e. Seven days after the occurrence, even therein neither the name of present petitioner has been mentioned nor an offence has been shown as being under section 302/34, P.P.C.; that police from Kot Samaba when reached Lahore to effect the arrest of Arsand Ullah Khan on 2-8-1998 had written a Rapat at Police Station South Cantt., Lahore wherein the offence has been shown as under section 302, P.P.C. Alone and the name of the petitioner was not mentioned therein. The learned counsel for the petitioner submitted that if all these factors are seen together, they provide strong basis to believe that present petitioner was never involved in the criminal case registered vide F.I.R. No.157 of 1998 until 5-8-1998 and that it was only after the filing of the habeas corpus petition by his mother that the local police in order to save their skin set up the story that he was accused nominated by the complainant by means of supplementary statement; that it was for this reason that the then Hon'ble Chief Justice had converted the habeas corpus petition into a bail application and had released the petitioner vide order, dated 6-8-1998; that the case in hand had been investigated at different levels and the present petitioner had been found to be innocent in successive investigations; that the first report under section 173, Cr.P.C. Had been prepared on 25-8-1998 in which the petitioner had not been mentioned as an accused; that even thereafter another report was submitted on 21-9-1998 wherein only Arshad Ullah Khan had been shown as an accused; that another supplementary challan, dated 13-11-1998 contained the petitioner's name in Column No.2 as an innocent accused; that subsequently another report submitted by the police on 22-6-2000 did not include the petitioner's name; that in the last report, dated 23-7-2000 again his name was placed in Column No.2. The learned counsel for the petitioner contended that criminal cases are to be decided on the basis of evidence on record; that summoning or non-summoning of an accused always deems on the availability or non-availability of incriminating material on the record; that in the instant case overwhelming documentary evidence supports the present revision petitioner that he had been involved in the present case malafidely, as the respondent police officials in the habeas corpus petition want to save their skin and, therefore, they while joining hands with the complainant/ respondent No.1 cooked up the false story about the supplementary statement and made scapegoat the petitioner. He argued that the bare perusal of the operative part of the summoning order, dated 15-12-2004 makes it clear that the learned trial Court did not apply its own independent mind but it has been swayed by the observation of this Court made in the order, dated 25-11-2004 and proceeded to summon the petitioner to face trial. The learned counsel laid lot of emphasis on the opening sentence of paragraph No.1 of the order (supra) wherein the learned trial Court had stated, "I could not go beyond the observation of the Hon'ble High Court".
The learned counsel concluded his arguments by submitting that this Court in its order, dated 25- 11-2004 had nowhere directed the learned trial Court to summon the petitioner to face trial. In support of his contentions he relied on the case, Haji Muhammad Aslam v. The State (1986 PCr.LJ 1442), Muhammad Saddiq and 5 others v. Mst. Badar Munir and another (1993 SCMR 233) and Shaukat Ali and others v. The State (1995 PSC (Crl.) 547).
10. The learned counsel for respondent No.1 on the other hand contended that Shahzad Ullah Khan petitioner is not duly nominated accused in the instant case whose name also did not find mention in the F.I.R. But the complainant/respondent No.1 through a supplementary statement nominated him in the occurrence on the same day; that moreover two of the witnesses of the occurrence are also supporting the complainant's version. He submitted that the grounds urged by the learned counsel for the petitioner will require deeper appreciation of material available on record, which exercise cannot be undertaken at this stage; that the accused/petitioner has to face trial and prove his innocence before the learned trial Court; that the impugned order, dated 15-12-2004 is perfectly legal and is based on valid and sound reasons. He pointed out relevant portions of the order, dated 25-11-2004 passed in Criminal Revision No.90 of 2003 by this Court, wherein certain strong observations had been made regarding the earlier order of the learned trial Court, whereby the application to summon the present petitioner/accused had been turned down and it was observed in the order, dated 25-11-2004 that the learned trial Court mainly relied on the observations made in the order passed by the then Hon'ble Chief Justice in the habeas corpus petition and maintained that such observations, though may be relevant for the decision of the trial, could not have been made basis of the order passed by the learned trial Court regarding summoning or otherwise of the accused person. He laid much stress on the point that after passage of the order, dated 25-11-2004 in Criminal Revision No.90 of 2003, the learned trial Court had no other option but to summon the petitioner/accused for trial and therefore, a just and legal order has been passed, which is supported by material on record. In support of his contentions, he placed reliance on the case, Muhammad Nawas Khan v. Noor Muhammad and others (PLD 1967 Lahore 176), Waqarul Haq alias Nithoo and another v. The State (1988 SCMR 1428), Muhammad Sharif and 8 others v. The State and another (1997 SCMR 304) and Safdar Ali v. Zafar Iqbal and others (2002 SCMR 63).
11. The learned counsel appearing on behalf of the State submitted that a perusal of record shows that the present petitioner was not nominated as accused in the F.I.R. And that his name was later on introduced through a supplementary statement. He submitted that assertion of the petitioner that he had been falsely implicated in the case after filing of the habeas corpus petition against police officials seems to be reasonable. He, however, contended that it is for the learned trial Court to evaluate such material during the course of trial. Towards the end of his arguments, he supported the impugned order, dated 15-12-2004 passed by the learned Additional Sessions Judge albeit halfheartedly.
12. I have heard the learned counsel for the parties and have also gone through the record as well as the esteemed judgments of the apex Court referred to by the parties. Needless to state that the law laid down by the Hon'ble Supreme Court is binding on all the Courts of the country and the same ought to be followed in its true spirit, but in my view the facts of the instant case are altogether different and distinguishable from the judgments referred to by the learned counsel for the petitioner. In Shaukat Ali's case (supra), the Hon'ble Federal Shariat Court held that Summoning order was passed by the Courts below without realizing that names of petitioners/ accused have been placed in Column No.2 of the challan and according to the police no evidence was found to implicate them in the commission of a crime. As a consequence whereof the petition was accepted and the summoning order was set aside. In Muhammad Siddiq's case (supra), the Hon'ble Supreme Court of Pakistan after perusing the record held that reasonable grounds were available that the accused had been falsely roped in through a private complaint to prevent them from assisting the other accused in the defence. Of the case and, therefore, the proceedings pending against them in a complaint, case were quashed. Same was the position in the case of Haji Muhammad Aslam (supra), wherein the Court observe.d that accused placed in Column No.2 of challan held arbitrarily summoned without applying conscious mind to F.I.R., statements of witnesses under section 161, Cr.P.C. And opinion of three Investigating Officers declaring petitioner to be innocent and thus the summoning order had been quashed.
' I have also gone through the judgments cited by learned counsel for respondent No.
1. The case of Muhammad Sharif (supra) to my mind has no applicability, in view of the instant proposition as the same deals with the question of discharge of accused/ cancellation of F.I.R.
However, in Safdar Ali's case (supra), the Hon'ble apex Court took the view that Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cognizance, if on the basis of the material placed before him he found that a prima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that could finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of section 190(1)(b) of the Code of Criminal Procedure. The view finds support from a decision of the Hon'ble Supreme Court of Pakistan in the case of Falak Sher v.
State (PLD 1967 SC 425). The perusal of the above referred esteemed judgments makes it clear that trial Court could take cognizance of a case despite a negative report by the police but process against accused should only be issued after the Court is satisfied from the material available on record that a prima facie case is made out against the accused. I am of the view that this essential requirement has not been fulfilled by the learned trial Court by passing the impugned order. To my mind, the vital issue in the instant case is that the learned trial Court while passing impugned order, dated 15-12-2004, whereby the present petitioner had been summoned to face trial had been grossly influenced by the observations made by this Court in its order, dated 25-11-2004 in Criminal Revision No.90 of 2003, therefore, in this scenario, I need not to go into the details of the case and the merits thereof as canvassed by both the parties, lest it prejudices any of them. There is no denying the fact that the learned trial Judge on 29-5-2003 had declined to summon the present petitioner presumably after evaluating the material available before him, which order had been challenged by the complainant through Criminal Revision No-.90 of 2003. The said revision petition remained pending for sometime before my learned brother Muhammad Farrukh Mahmud, J., who had allowed the same on 25-11-2004, whereby he had made certain observations while setting aside the order, dated 29-5-2003. However, on the said occasion this Court had refrained from summoning the petitioner and the case had been referred back to the learned trial Court with the direction that the application of the petitioner would be deemed to be pending before it and the same would be decided on the basis of material available on the record within two weeks. It is strange that the learned trial Court thereafter allowed the said application on 15-12-2004 notwithstanding the fact that no progress in the trial had been made due to the pendency of the revision petition in the High Court. The contention of the learned counsel for the petitioner that the learned trial Court had been swa yed by the observations made by this Court in its order, dated 25- 11-2004 and had blindfoldly proceeded to summon the petitioner without there being any material change in the circumstances gets support from the record, inasmuch as perusal of the impugned order, dated 15-12-2004 reveals that the learned trial Court had immeasurably been influenced by the order passed by this Court on 25-11-2004 and it was for this reason that he had observed that "I could not go beyond the observation of Hon'ble High Court". This abundantly shows that the learned trial Court instead of applying its own independent mind for evaluating the material available on record proceeded to summon the petitioner to face trial 'despite the fact that in the interregnum no progress had been made in the trial. On this short score alone, the impugned order, dated 15-12-2004 is not sustainable.
13. Resultantly, I set aside the impugned order, dated 15-12-2004 passed by the learned Additional Sessions Judge. The application of the complainant shall be deemed to be pending and the learned trial Court shall decide the same by applying its own independent mind instead of being influenced by any observation made in the order, dated 25-11-2004 passed by this Court in Criminal Revision No.90 of 2003.