' Iqbal Hussain Shah and Aghaz Shah (petitioners) have called in question order dated 11-11-2010 passed by learned Judge Anti-Terrorism Court, Bahawalpur, whereby petitioners were summoned to face trial in a private criminal complaint titled "Allah Ditta v. Iqbal Hussain Shah, etc."
2. Brief facts giving rise to the filing of instant petition are that Allah Ditta respondent No,2 instituted a criminal complaint against seventeen persons including the present petitioners under sections 109, 302, 452, 148, 149, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 in the court constituted under the above Act, at Bahawalpur. The complaint was filed for the commission of murders of Ibrahim, Mst. Faizan Mai, Mst. Ruqia Mai, Mst. Zainat, Mst. Hifza, Mst. Hansa and Muhammad Yousaf. In the complaint allegations of abetrnent/conspiracy were levelled against both these petitioners. After admission of complaint, cursory evidence was produced before the learned trial Court, after appreciating the preliminary evidence the learned trial Court passed an order under section 204, Cr.P.C. On 11-8-2008 and summoned all the respondents mentioned in the complaint except the petitioners. After procuring the attendance of the respondents pretrial formalities were observed and then the accused were indicted on 17-3-2009 under different heads of the charge-sheet. During trial statement of Allah Ditta complainant was recorded as P. W.1 and statement of Rab Nawaz was recorded on the same day as P.W.2. Both the P.Ws. Were not cross- examined and cross-examination was reserved on the request of accused persons. After recording of said two statements, the complainant Allah Ditta (respondent No,2) submitted an application- before the learned trial court praying for the summoning of the petitioners in the complaint case to face trial along with accused who had already been summoned. The said application was accepted and petitioners were summoned by the learned trial court vide order dated 11-11-2010, hence, the instant writ petition.
3.
In support of writ petition, it has been argued that the learned trial Court could not review its previous order dated 11-8-2008 as in that order the petitioners had not been summoned and the said order was still in the field, in presence of same second.Order dated 11-11-2010 could not be passed and same is liable to be set aside. Learned counsel has criticized the statement of P.W.2 namely Rab Nawaz who allegedly claimed to have overheard the incident of conspiracy allegedly hatched up between the petitioners and their co-accused, was not examined by the complainant at preliminary stage during the proceedings of the complaint in cursory evidence, whereas, his statement was recorded much later during the trial while passing of the first order dated 11-8-2008.
Further argued that his statement cannot be taken into consideration as it had been recorded in the absence of the petitioners and was yet to be cross-examined in order to test the veracity of said witness. Further submits that the complainant did not challenge the order dated 11-8-2008 whereby the petitioners were not summoned, as such the same has attained finality. The learned counsel has vehemently submitted that no provision in the Code of Criminal Procedure exists to empower the learned trial court to review its earlier order therefore, the impugned order is bad in the eyes of law. The learned counsel has further argued that impugned order has been passed with a lapse of about two years after the first order which fact may also be taken into consideration while deciding the instant petition. In support of his contentions learned counsel has placed reliance on the case "ABDUL HUSSAIN SANA v. SUWALAL AGARWALA and another" (PLD 1962 SC 242) and, "HAJI JUNNA T LAL v. THE STATE and another" (PLD 2001 SC 433).
4. We have heard the learned counsel for the petitioners and also sought assistance from the learned Deputy Prosecutor-General who has entered appearance on court's call.
5. It has been noticed by us that both the petitioners were nominated by the complainant/respondent No,2 in the private complaint with the allegation of abetment/conspiracy and he got his statement recorded as Cursory statement before the learned trial Court and deposed against all the persons nominated by him in the complaint as accused. So far as non- recording of statement of Rab Nawaz P.W.2 at the time of preliminary proceedings of the complaint who has deposed about the fact of conspiracy/abetment, is concerned, it does not make any difference because in the interest of justice the statement of any person can be recorded whose evidence is essential for the just decision of the case after summoning him under section 540, Cr.P.C. As ample powers have been given to the learned trial Court under the said section. We have noted from the list of prosecution witnesses available on the file and name of the said P.W. Has been mentioned therein and also gone through the statement of the complainant recorded as P.W.1, wherein he has categorically deposed against the petitioners and his statement has been corroborated by the statement of Rab Nawaz P.W.2. We are conscious of the fact that when the court is seized of the trial then can pass any appropriate order in the circumstances of the case.
Here, the learned trial Court has taken the cognizance of the case not of the accused, therefore, the court is not debarred to summon a person who is prima facie found involved in the commission of the crime alleged to face trial.
Summoning of a person to face trial does not mean conviction; it is only a notice to the person so summoned to defend him against the charge alleged against him. In this context reference may be made to section 193, Cr.P.C. Which gives vast powers to the Sessions Court after taking cognizance of the offences in this respect.
6. The Code of Criminal Procedure, 1898 is applicable to the proceedings carried out by the courts constituted under Anti-Terrorism Act, 1997; therefore, the learned trial court was competent to summon the petitioners in the complaint case to face trial. Furthermore, an order passed under section 204, Cr.P.C. Is not equated with judgment passed under section 265-H, Cr.P.C. And its alteratiori in review under section 369, Cr.P.C. Because that order is not to be treated as judgment.
7. An order passed under section 204, Cr.P.C. Empowers the court to proceed with the trial against whom the complaint has been instituted, j therefore, same cannot be treated as judgment or final order, whereas, the word "judgment" denotes the "final order passed after complete rehearsal of the trial by a competent court". In this legal situation, it I cannot be said that the learned trial Court was not competent to pass the impugned order dated 11-11-2010. It does not amount to review its L previous order, as fresh material was brought before Court; relying on the same impugned order has been passed. We have been fortified by the principles laid down in the following reported judgments with regard to power of learned trial Court for summoning a person in the case.
"MUHAMMAD ASHRAF v. THE STATE and another" (1995 SCM R 894), "SOHNO v. THE STATE and another"
(1990 PCr.LJ 1190) and "ZAHID ANWAR WAHLA v. MUHAMMAD AMIN and another" (1993 PCr.LJ 1585).
The petition being devoid of force isiM dismissed in limine.