' NISAR MUHAMMAD SHAIKH, J.---This Criminal Revision directed against the order dated 27th July, 2010 passed by learned 1st-Additional Sessions Judge Ghotki whereby he dismissed an application under section 193, Cr.P.C. Filed by the applicant/complainant with a prayer to join respondents Nos.1 and 2 as accused to face trial in Sessions Case No,356 of 2009 State v. Muhammad Murad and others under sections 302, 148, 149 and 337-H(2), P.P.C. (Crime No,59/2009 of Police Station Khanpur-Mahar).
2. According to learned counsel for applicant/complainant Ali Ghulam, the incident took place on 17-4-2009 at 4-30 p.m. And the F.I.R. Was promptly lodged on the same day at 6-00 p.m., in which the names of six accused persons including both respondents namely Muhammad Murad and Ghulam Mustafa were mentioned with specific role of firing with their respective Kalashanikovs and due to firing by all accused persons upon Mir Hazar, the father of complainant, he sustained ten fire shots bullet injuries and he succumbed to the injuries and died at the spot which fact is also corroborated by the medical evidence as well as 161, Cr.P.C. Statements of the P.Ws. Therefore, the respondents who committed the offence of brutal murder together with co-accused were also liable to be tried in this case but the police malafidely let-off both, respondents on the plea of alibi.On the basis of subsequent 161, Cr.P.C. Statements of some unconcerned persons allegedly recorded on 27-5-2009, in defence of these respondents. He also pointed out that the interim challan which was treated as final on 27-5-2009, shows that it was prepared on 19-5-2009 and the same was to be submitted in Court on 20-5-2009 showing nothing about the defence evidence if recorded in favour of the respondents till such date but the police malafidely submitted further report on 8-6-2009 as final report in which they exonerated respondents on the ground that they were in the Otaq of one Raza Hussain Shah at the relevant time of incident, and the same was arbitrarily believed by trial Court whose order is liable to be set aside being perverse and capricious. In support of his contentions, learned counsel for the applicant also placed his reliance on the cases reported in 2002 SCM R 63, PLD 2000 Karachi 280 and 2009 PCr.LJ 367.
3. On the other hand, learned counsel for the respondents Nos.1 and 2 submits that it is yet to be determined after recording evidence by the trial Court as to whether the injuries sustained by the deceased were the result of one fire shot of the Kalshanikov or more therefore, it cannot be said at this stage that all the six accused persons nominated in the F.I.R. Had fired with their respective Kalashanikovs as the injuries sustained by the deceased could be caused by one fire shot of the kalashanikov. He further submits that the medical evidence could not be taken at this stage to be a conclusive proof of occurrence of the alleged incident so as to join the let-off accused in the case.
He also pointed out that the very F.I.R. Indicates that the motive of crime was the robbery of a motorcycle of the deceased, allegedly committed by the accused party about three months prior to the registration of present F.I.R but there is no F.I.R. Registered for the alleged robbery to connect the accused for the alleged crime therefore, all these things need evidence to be recorded by the trial Court and after such evidence, if the material comes against the respondents Nos.1 and 2, then, the trial Court may join these respondents as co-accused to face the trial. He therefore supported the order of learned trial Court.
4. Whereas, the contention of learned Deputy Prosecutor-General appearing for the State is that as per medical evidence total sixteen fire arm injuries were sustained by the deceased and as per mashirnama eighteen empties of bullets were secured from the place of incident, which support the contents of F.I.R. That all the six accused had fired with their respective Kalashanikovs at the time of incident which is also corroborated by 161, Cr.P.C. Statements of the P.Ws. He further submitted that the respondents. Nos.1 and 2 may be joined as co-accused to face the trial and defend their case so that the truth may come on the record. He also contended that since all the six accused persons nominated in the F.I.R. Including the respondents Nos.1 and 2, were shown as absconders in the interim challan dated 20-5-2009 which was accepted by Judicial Magistrate and he, vide his order dated 27-5-2009, also treated such interim report as final report therefore the learned Magistrate, after taking cognizance of the case, could not accept further report whereby the respondents Nos.1 and 2 were let-off by the police by way of subsequent statements allegedly recorded by them under section 161, Cr.P.C. On the plea of alibi, hence the impugned order is liable to'be set aside.
5. I have considered the above submissions and perused the relevant record. The very F.I.R.
Appears to have been lodged promptly, nominating all the accused including the respondents Nos.1 and 2, with specific role of firing with their respective Kalashanikovs upon the father of complainant who died at the spot. According to learned Deputy Prosecutor-General, such contents of F.I.R. Were also corroborated by 161, Cr.P.C. Statements of the concerned P.Ws. Namely Mir Dost and Fazal Muhammad whose names were also mentioned in the very F.I.R. And their statements were recorded on 18-4-2009 therefore, the same could not be brushed aside merely for the reason of recording subsequent 161, Cr.P.C. Statements of the persons whose names are not appealing in the very F.I.R. Accordingly, the defence that the respondents Nos. 1 and 2 were present at another place at the time of alleged incident, requires to be established by them at trial of the case.
6. Even otherwise, the order passed on 27-5-2009 by the Magistrate on the interim challan dated 20-2-2009 is crystal clear that such interim challan/report was treated as final report. In such interim report the present respondents were also shown absconding accused, and the Magistrate had taken cognizance of the case which was also against the respondents, together with the accused who are now facing trial before the trial Court. The Magistrate had statutory powers to take such cognizance as sufficient material was found available to connect all accused with alleged crime and there was nothing wrong in doing so. The case of Safdar Ali v. Zafar Iqbal and others reported in 2002 SCM R 63, as relied upon by learned counsel for applicant, very clearly provides that there is no cavil to the proposition that the accused placed in Column No,2 of challan cannot be summoned by the trial Court to face the trial and there is no legal bar whatsoever that at first instance the evidence should be recorded to ascertain as to whether the prima facie case is made out against them. This authority was also referred and followed in the other reported cases being relied upon by learned counsel. But the case of applicant against the present respondents Nos.1 and 2 is on better footing as in the above reported case the accused were placed. In column No,2 of the challan, whereas in the present case the respondents Nos.1 and 2 were not placed in Column No,2 of the interim report challan and on the contrary they were shown absconders in such report which was treated by the Magistrate as final report. Thus, the subsequent report submitted by the Police before the Magistrate, which was based on the false and wrong ground that they were granted time for submitting final report/challan, could not be treated as a proof of the innocence of respondents before due trial of the case as there is direct evidence against them.
7. In the circumstances, the impugned order of the learned trial Court, calls for interference being not sustainable in law and therefore, same is set aside. The learned trial Court is directed to try the case after joining the respondents Nos.1 and 2 as co-accused and then to dispose of the same in accordance with law.
' The present criminal revision stands allowed accordingly.