' ANWAR ZAHEER JAMALI, J.- This criminal revision application under section 439 read with section 561-A, Cr.P.C. Has been preferred against the order, dated 6-10-2004 passed by learned Sessions Judge, Hyderabad, allowing an application under section 190 read with sections 193 and 173, Cr.P.C.
In Sessions Case No, 309 of 2004, moved by the respondent No, 2 Neelo son of Shadi Kolhi.
2. The relevant facts of the case are that, on 12-7-2004 respondent No,2 lodged report at Police Station, Chamber stating therein that his daughter Shrimati Bali was married to Pirbhu Kolhi son of the applicant and in exchange Mst. Dori, sister of Pirbhu was married to his son Botio. About 8 days prior to the lodging of report, the family of his son-in-law had shifted to village Nusrat Hussain Shah. On 12-7-2004 in the morning time, Mango Kolhi, brother of the applicant came to the house of respondent No,2 Neelo and informed him that his daughter Bali has died last night, due to abdomen pain. On receiving such information, respondent No,2 along with his son Shamo and Hafiz Munir, Kamdar of his Zamidar, went to the house of his son- in-law at village Nusrat Hussain Shah, where they found the dead body of his daughter Shrimati Bali was lying on cot and some blood was oozing from her mouth and nose. On moving her head, it was found that her neck was broken. The respondent No,2 further stated that the husband of the deceased and her father-in- law Ramshi in collusion with each other have broken her. Neck and killed her.
3. After usual investigation, on 1-8-2004, the police submitted challan under sections 302 and 34, P.P.C. Before the trial Court, showing die name of the applicant in Column No,2 of the challan.
4. On 9-9-2004, respondent No,2 Bled an application under section 190 read with sections 193 and 173, Cr.P.C. For joining the applicant Ramshi as co-accused in the case, which was heard by the learned Sessions Judge, Hyderabad and by impugned order, such application was granted and consequently, applicant was joined in the case as co-accused to face the trial, and non-bailable warrants were issued against him. !
5. Mr. Noor Nabi G. Memon, learned counsel for the applicant, vehemently contended that during police investigation, the applicant was found innocent and it was for this reason that his name was placed in Column No,2 of the challan. In such circumstances unless evidence of some prosecution witnesses was recorded before the trial Court or some other material has come on the record, showing the Involvement of the applicant in the crime, the trial Court was not justified in granting the application of respondent No,2 for joining the applicant as co-accused in the crime. Moreso, as the police, during the investigation of the crime, has got recorded section 164, Cr.P.C. Statement of accused Pirbhu, who has exonerated the applicant for his involvement in the crime. In support of his arguments, learned, counsel has placed reliance upon the following cases:- Inayatullah v. State (1999 Cr.LJ 731), Shaukat Ali v. State (PU 1995 FSC 160), Muhammad Khan v. State (1996 PCr.LJ 99) and Safdar Ali v. Zafar Iqbal (2002 SCMR63).
6. Mr. Masood A. Noorani,learned Addl. A.G. Has supported the impugned order and contended that there is no perversity or arbitrariness in exercise of discretion by the trial Court in joining the applicant as co-accused to face the trial. Thus, such order passed by the trial Court is immune from interference under section 439, Cr.P.C.
7. Mr. Mumtaz Alam Leghari, learned counsel for the respondent No,2, contended that it is well- settled legal principle that the report submitted by the police is not binding upon the Court nor it is the requirement of law that unless further evidence is recorded by the trial Court it has no power to join any other accused to face trial. He further contended that the trial Court is fully justified in joining applicant as co-accused as he is nominated accused in the crime with full certainty and this apprehension of the respondent No,2 is also supported by the statements of two prosecution witnesses, therefore, the investigation report submitted by the police, exonerating the applicant and placing his name in Column No,2 was dishonest and rightly not accepted by the trial Court. To fortify his submissions, Mr. Leghari placed reliance on following cases.
Mukhtar Ali v. Sono (PLD 1993 Karachi 342), Abdullah v. Edan (2001 PCr.LJ 1624), Waqarul Haq v.
State (1988 SCMR 1428) and Safdar Ali v. Zafar Iqbal (2002 SCMR 63).
8. I have given due consideration to the arguments advanced by the learned counsel, gone through the material placed on record and also the case-law cited at the bar.
9. There is no dispute about the proposition of law that the investigation report submitted by the police under section 173, Cr.P.C. Is not binding on the Court and it is for die Court to decide whether there is sufficient material before it to join some accused to the case, whose name has been placed in Column No,2 of the challan or not. It has been clearly observed in the case of Waqarul Haq (supra) that it is, not the requirement of law that before summoning an accused, whose name appears in Column No,2, to face the trial, the trial Court should first record evidence, but the Court can directly summon him to stand trial. Further, it has been held that if consequent to the police report an accused has been discharged under section 63, Cr.P.C. Even it will not mean that he could not be summoned by the Court to stand the trial. Similar view has also been taken by the apex Court in the case of Safdar Ali (surpa).
10. Admittedly, the incident of murder of Mst. Bali is an unwitnessed incident, therefore, prosecution has to collect bits and pieces of evidence to bring home their case against the culprits involved in the crime. It is pertinent to observe that when a Magistrate takes cognizance of an offence he takes cognizance as a whole an not only against an offender/accused found by the police to be involved in the offence as per their investigation. After taking cognizance of the offence the Court acquires jurisdiction over all the persons involved and not merely over the persons against whom the challan is submitted, therefore, a Magistrate in his discretion, of course judicious, could summon a person, whose name appears in Column No,2 of the challan, to stand trial. In the instant case it is an admitted position that applicant is one of the persons, who has been specifically nominated by respondent No,2 in the complaint being involved in the murder of his daughter along with other accused Pirbhu. The two prosecution witnesses examined during investigation have also supported the case of respondent No,2. Thus, to this extent case of applicant and other accused Pirbhu is at par. Mere fact that in his 164, Cr.P.C. Statement, the other accused Pirbhu, who is admittedly son of the applicant, has taken the whole responsibility of the murder of deceased Mst. Bali and confessed his sole involvement in the crime does not mean that without recording any further evidence, the trial Court was not justified in passing the impugned order for joining the applicant as co-accused in the crime. The cases cited by Mr. Noor Nabi G. Memon also do not dislodge the settled proposition of law that opinion of the police is not binding on the Court. Moreover, the submission of Mr. Masood A. Noorani, learned Addl. A.-G. Is also not without force as the impugned order passed by the trial Court is neither perverse nor the exercise of discretion by the trial Court in joining the applicant as co-accused in the crime can be termed as arbitrary exercise of discretion by the trial Court.
11. For the foregoing reasons. I find no substance in this criminal revision, which is accordingly dismissed along with listed application.