Petitioner Muhammad Aslam has filed the instant petition against the order dated 10.9.2009 passed by the learned Addl: Sessions Judge, Liaquatpur in his revisional jurisdiction.
2. Brief facts leading to the institution of this petition are that Muhammad Aslam petitioner got a case registered against Mithay Khan, Nawaz Shareef, Bakhat Ali, Asghar Ali, Muhammad Aslam and Abdul Razaq leveling allegation against them that on 26.10.2006, he was deceitfully taken by the accused persons at a particular place where Abdul Razaq and Muhammad Aslam accused persons chopped off his nose.
The case was investigated and as a result of investigation, respondents Abdul Razaq and Muhammad Aslam were found innocent. When report under Section 173 of the Cr.P.C. was prepared, on 24.11.2006 names of these two persons were not mentioned in any column of the said report except in the column of brief facts of the prosecution case have been recorded, individual role of each respondent was mentioned.
After the submission of the Challan in the Court, the petitioner moved an application there for summoning the two respondents on 13.04.2009. On the same date, application was heard, accepted and respondents were summoned by the learned trial Court to face the trial alongwith their co accused. In the order of summoning, the learned trial Court observed that both the respondents were nominated in the FIR and they chopped off nose of the petitioner. The learned trial Court also took care of the police opinion and held that the same was neither relevant nor permissible. Respondents challenged summoning order in revisional jurisdiction before the Sessions Court.
Criminal revision of the respondents was accepted by the Court of learned Addl: Sessions Judge vide its order dated 10.9.2009 holding that names of the respondents were not mentioned by the police either in Column No, 2 or in Column No, 3 of the Challan, therefore, summoning order of the learned trial Court was set aside.
3. The petitioner being complainant challenged the illegality and impropriety of the impugned revisional order, hence this petition.
4. In support of this petition learned counsel for the petitioner has submitted that Abdul Razaq respondent was holding a 'Churri' at the time of occurrence and gave a cut on the nose of petitioner but it could not separate still some portion of the nose was hanging with the nose due to skin thereafter Muhammad Aslam after taking same `Churri' from Abdul Razaq chopped off nose of the petitioner and this allegation has been supported by the medico legal report of the petitioner; further submitted that these two respondents have played major role in the commission of crime and police has declared them innocent without any cogent and tangible material; further contended that version of Muhammad Aslam petitioner has been supported by the eye-witnesses namely Nazeer Ahmad s/o Abdullah and Nazeer Ahmad s/o Khuda Bakhsh; further submitted that ipsi dixit of the police howsoever is not binding upon the Court and is also inadmissible in evidence.
It has been submitted that Court has taken cognizance of the offence not of any particular accused, therefore, learned trial Court was right and justified in summoning the respondents; further submitted that the impugned order on the ground that view taken by the leaned Court that the respondents were neither shown in column No, 2 or column No, .3 cannot be summoned and is not sustainable in the eyes of law. Learned counsel for the petitioner has further relied upon reported judgments Safdar Ali versus Zafar Iqbal and other 2002 SCMR Page 63 and M. Ashraf and others versus The state 2006 SD 471, in support of his arguments.
5. On the other hand, learned counsel for the respondent has supported impugned order on the ground that the learned trial Court without recording any evidence summoned the respondents, therefore, on the face of it, the order of the learned trial Court was not sustainable. It has also been argued that at least the learned trial Court should have recorded statements of the petitioner then the respondents could be summoned; further argued that prosecution branch has not recommended prosecution of the respondents in this case and so for the petitioner has not instituted a private criminal complaint against the respondents and their co-accused; further argued that although the police opinion is not binding upon the Court but at the same time it cannot be ignored because it runs counter to the prosecution case Lastly maintained that impugned order has rightly been passed, therefore, it may not be set-aside.
6. Heard and record perused.
7. In order to appreciate the contentions of both the parties it is imperative to have a look on the relevant provision the Cr.P.C. Section 190 of the Cr.P.C. (V of 1898) is hereby reproduced as under:-- "Cognizance of offences by Magistrate.
(1) All Magistrates of the first class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court, may take cognizance of any offence.
(a)Upon receiving a complaint of facts which constitute such offence.
(b)Upon a report in writing of such facts made by any police officer.
(c)Upon information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed which he may try or send to the Court of sessions for trial.
(2) A Magistrate taking cognizance under sub-section (1) of an offence triable exclusively by a Court of Sessions shall, without recording any evidence, send the case to the Court of Session for trial."
8. It is very much clear that any learned trial Court may take the cognizance of the offence not of a particular accused and law is very much clear on this aspect that whosoever comes within the mischief of offence, the trial Court is competent to summon him at any stage during the trial. There is no bar in the law that at what stage accused may be summoned and may not be summoned. It has to be taken into consideration by the learned trial Court whether there is sufficient material available on the file which prima-facie warranting summoning of a person to face trial or not.
9. Tentative assessm ent of the record manifests that respondents are specially nominated in the FIR and have played principal role during the occurrence and version of the petitioner has also been supported by the eye-witnesses in their statements recorded under Section 161, Cr.P.C. as well as by medico legal report of the petitioner. So far as opinion of the police is concerned, i,e, absolutely not binding at the stage of the trial' on the trial Court because the Court has to decide the case on the basis of relevant and admissible evidence brought before it by the parties.
Whereas both the respondents were not got discharged by any competent Court of law. Reliance is placed on reported Judgment Safdar All Vs. Zafar Iqbal and others, 2002 SCMR 63. Relevant portion is as under:- "Section 190 cognizance of offence by the Magistrate.--Magistrate can take cognizance of an offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents." Whereas in reported judgment titled M. Sharaf and others versus The State, 2005 SD 471 it has been held that :-- "Section 173 of the Cr.P.C. (V of 1898) trial Court would rightly exercise its power under Section 173 to summon accused persons who are neither named in Column 2 or Column 3 of the challan submitted by police. This is in consonance with the law laid down by Supreme Court that even accused who were found innocent and police had discharged them, could be summoned to stand trial before the trial Court because in such event case shall not be treated as cancelled."
10.The learned revisional Court has committed material c illegality; hence the impugned order dated 10-09-2009 is set aside and order dated 10-09-2009 passed by learned trial Court is maintained.
11.With the above observations, this petition stands, disposed of.