' SALMAN HAMID, J.---Learned Ilnd Additional Sessions Judge, Larkana upon consideration of an application moved by present respondent No,1 under section 193, Cr.P.C. For joining above applicants in Session Case No,419 of 2007 (State v. Dhani Bux and others) and it having been granted, present criminal revision has cropped up.
2. The facts for the purposes of disposal of this criminal revision are that respondent No,1 on 1-11- 2007 lodged an F.I.R. No,35 of 2007 at Police Station Waris-Dino Machhi under sections 302/324, Ai,, Fi, Hii, 148, 149, P.P.C. Against Rahim Bux, Rahmatulhh, Abdul Qadir, All Bux, Nabi Bux, Sadullah, Jameel, Hadaytullah, Abdul Rasool, Manzoor Hussain alias Mumtaz, Abdul Qayouir and Inayatullah.
It was alleged in the F.I.R. That at 9-00 a.m. On 1-11-2007 when he along with P.Ws. Abdul Rasheed and Mashooque Ali were on their way to their land all the accused persons who were armed with weaponry, hatchets and lathis attacked them before which harsh language was exchanged. Per F.I.R. Abdul Rasool (applicant No,1) tired from his gun upon Mashooq All whereas Manzoor Hussain (applicant No,2) caused hatchet blows to P.W. Muhammad Qasim on his skull and Abdul Qayoom (applicant No,3) tired from his pistol upon P.W. Manzoor Ali which hit him on his head and Inayatullah (applicant No,4) caused lathi blows to P.Ws.
3. Standard investigation was conducted and was followed by challan wherein Rahim Bux, Abdul Qadir, Rahmatullah, Ali Bux were revealed arrested while Nabi Bux, Sadullah, Jameel and Hidayatullah were made known as absconders and at hand applicants namely Abdul Rasool, Manzoor Hussain, Abdul Qayoom and Inayatullah were positioned in Column No,2 of the challan sheet.
4. On the root of the above, learned IInd Additional Session Judge, Larkana delivered the impugned Order dated 16-3-2009, wherein it was mentioned that-given that the present applicants have been assigned definite roles in the F.I.R. Nonetheless the Investigating Officer found the applicants in the clear during investigation and that the opinion of Investigating Officer is not binding upon the court, the application was endorsed and the applicants were fixed to face trial. Bailable warrants were issued against the applicants in the sum of Rs,200,000 each.
5. It was argued by the learned counsel for the applicants that one whose name has not been mentioned in column of the challan as an accused cannot be put as such without first recording evidence. It was also urged that for the duration of the investigation no real evidence having been found against the applicants, they could have not been linked with the crime, mentioned in the F.I.R.
It was also mentioned that Abdul Rasool (applicant No,1) is an Operational Manager in National Bank of Pakistan and Abdul Qayoom (applicant No,3) is a Sales Manager in the same bank at Shikarpur branch. It was mentioned and argued that on the rendezvous of alleged incident both of them were on duty. To support his disputation, certificate dated 2-2-2009 issued by the Manager of the Bank. Namely Zafar Ali Shaikh was produced in which it was firmly stated that applicant No,1 namely Abdul Rasool was in attendance at the branch on 1-11-2007 from 8-30 a.m. To 5-30 p.m.
Equally the certificate which vies produced by applicant No,2 also shows that on 1-11-2007 he was on job from 8-30 a.m. To 5-30 p.m. Attendance sheets were also produced, showing that these two applicants were present in their bank on 1-11-2007. As far as applicant No,2 namely Manzoor Hussain pseudonym Mumtaz is concerned, it was mentioned that he is a Junior School Teacher and was available at Government High School, Masu Deno. To bear this contention, attendance certificate of Headmaster of the referred school was annexed with the application, wherein it was evidently mentioned that Manzoor Hussain was on duty from 8-30 A.M. To 2-00 P.M. Attendance register in support of the certificate was also brought on record. The applicant No,4 namely lnayatullah was available at village Abra in connection to his cattle business along with Abdul Rasheed Lolai and Muhammad Nawaz Mehr.
6. On the basis of above arguments, supported by documents, as an auxiliary, it was also mentioned that the matter was also thoroughly investigated by the high-ups of police concerned a number of times upon request of Abdul Satter, one of the brothers of deceased Mashooque. All the investigations, it was argued, found the applicants innocent as no evidence was brought against them and this was after coming to the conclusion that they (applicants) were not present at the time, date and place of the occurrence.
7. On the basis of above arguments, it was mentioned that since no case was made out against the applicants, they were rightly shown in Column No,2 of the challan and that the IIiid Additional Sessions Judge, Larkana without appreciating such obtrusive facts allowed the application which needs to be set aside by this court.
8. When this application was heard on 14-2-2011, learned counsel for the respondent No,1 was called absent even though the fact that on 24-1-2011 it was ordered that no further adjournment shall be granted when it (adjournment) was seriously objected to by the learned counsel for the applicants. Application was therefore, adjourned to 31-1-2011. On that day (31-1-2011) the application could not be heard for want of time and at the request of learned counsel for the applicants it was adjourned to 14-2-2011 with specific order that the application will be taken up at serial number 1 in regular cases. Under this state of affairs application was heard and was reserved for orders with an observation that learned counsel for the respondent No,1 may file written arguments within three days. Trace would show that no written arguments on behalf of respondent No,1 were filed. But written arguments on behalf of P.W. Muhammad Wasim were preferred on 18-2- 2011 by Mr. Mukhdoom Syed Juma Shah, Advocate. All the way through these written arguments revision application was resisted. It was stated that the application is not maintainable and the impugned Order dated 16-3-2009, passed by the learned IInd Additional Sessions Judge, Larkara is spot on which require no interference by, this court and that the applicants have been rightly joined to face trial in the case. It was reiterated that since the names of the applicants have transpired in the F.I.R. With specific roles and that it was day time happening, therefore, question of non-identity does not arise, and that since the court was not bound by the opinion of the Investigation Officer such applicants have been rightly drawn in the Case. It was also added that the Investigating Officer acted malafidely and with ulterior motives and for that; reason the application was correctly allowed and that the present criminal revision under the conditions is liable to be dismissed.
9. Learned State counsel mentioned that he has no objection to the grant of the criminal revision as the impugned order was passed without appreciating that if after evidence of the P.W. Anything conies against the applicants, they could have been ordered to be joined as co-accused.
According to the learned State counsel the impugned order was premature.
10. Heard arguments and perused the record.
11. It is lucid from the various documents brought on record, including the certificate and the attendance registers that the present applicants were- at hand on their respective duties and/or other places with other persons at the time and date when the alleged incident took place
12. Written arguments filed on behalf of one Muhammad Qasim, prosecution witness nowhere disputed or denied documents produced or names disclosed by the applicants. Nothing in refutation was argued on behalf of respondent No,1 namely Jumma Khan or any written arguments were submitted despite specific order of this court, passed on 14-2-2011. All this suggests that whatever documents were brought on record or whatever names were disclosed by the applicants in proof of the fact that they were not available at the time, place and date of incident have gone uncontested and un-rebutted. Therefore, the presumption deducible from such documents and names disclosed, for the time being, would be taken as correct and up to standard.
13. It is true that trial court is bound/empowered to call/summon any person and to join him as co- accused during the trial but such power has to be exercised when there is ample material existing before such court, connecting that person in commission of the alleged offence and that in realization of such a conclusion the court has to rely on the testimony of the proceedings or the material collected by the investigation agency and not on extraneous grounds/materials which does not form record of investigation.
14. In the case in hand it would become copiously clear that at least on three occasions at the request from the complainant's side investigation was carried out. On all occasions the applicants were found innocent and not available at the time, date and place of incident. This fact has been fortified by the applicants by production of various documents and names, showing that they were available at the places other than the place of the incident at the time and date when such incident had taken place. Nothing in confutation, as already mentioned above was brought on record to dislodge such claim of the applicants.
15. It seems that despite such a fact, the learned IInd Additional Sessions Judge, Larkana got impressed just on the fact that the names of the applicants were mentioned in the F.I.R. Since presently and prima facie evidence is available in favour of the applicants that they were not available at the time, date and place of the incident, advantage thereof ought to go to them. As a result, the above criminal revision is allowed and the impugned order dated 16-3-2009 is set aside.
However, it is observed that it will be open to the trial Court to pass any appropriate order directing present applicants to join trial as co-accused pending further trial, provided adequate evidence is brought on record during such trial, implicating the applicants is respect of above crime.
16. Present revision application is disposed of in the above terms.