Syed Shahbaz Ali Rizvi:- Through this constitutional petition, the petitioner impugns the orders dated 21.05.2015 and 30.09.2015 passed by the learned trial court and learned Additional Sessions Judge, Rawalpindi, respectively, refusing the prayer made by the petitioner qua the summoning of respondents No.1 to 5, the accused persons of case FIR No.511 dated 18.07.2012 offences under Sections 365 & 395 of Pakistan Penal Code, 1860, registered with Police Station Civil Lines, District Rawalpindi, who were declared innocent by the Investigation Agency and their names were placed in column No.2 of the report under Section 173 of the Code of Criminal Procedure, 1898.
2. The brief facts of the case are that the petitioner got registered the supra mentioned criminal case for abduction of her daughter Mst. Khushnood Bibi against Hakeem Khan, Bilal, Mst. Pervezan Jan, Tazeem Jan and Mst. Shahnaz Jan. After her recovery through police from the house of accused Hakeem Khan abductee Mst. Khushnood Bibi, got recorded her statement and besides the accused mentioned in the crime report implicated Akhtar, Asghar Khan and Gull Hameed but during investigation police found Asghar Khan, Tazeem Jan, Gull Hameed Khan, Mst. Shahnaz Bibi and Mst. Pervaizan Bibi, respondents No.1 to 5 innocent and placed their names in column No.2 of report under Section 173 of the Code of Criminal Procedure, 1898. After the submission of challan, the petitioner filed an application before the learned trial court for summoning of respondents No.1 to 5, on the ground that they were nominated by the witnesses in their statements under Sections 154, 161 & 164 of the Code of Criminal Procedure, 1898. The application was dismissed by the learned trial court vide impugned order dated 21.05.2015 whereupon the petitioner filed a criminal revision against the said order which met the same fate on 30.09.2015, hence the instant writ petition.
3. Learned counsel for the petitioner contends that the impugned orders passed by both the learned courts below are against the relevant law and facts of the case in hand; that the learned courts below failed to exercise their jurisdiction in accordance with the established norms of justice and conduct of learned trial court by keeping the application of the petitioner meant for summoning of the accused persons placed in column No.2 of report under Section 173 of the Code of Criminal Procedure, 1898, for a period of more than one year, is unreasonable and adverse to the concept of fair trial rather is seriously prejudicial towards the petitioner; that the learned trial court while passing the impugned order dated 21.05.2015 totally relied upon the police opinion without appreciating the available evidence against the accused persons, required by the petitioner to be summoned to face the trial and that the delay in decision of the application filed by the petitioner is attributable to the learned trial court and not the petitioner. Finally, craves that both the impugned orders being illegal may be set aside and the learned trial court be directed to issue process against the five accused persons named in the application dated 12.03.2014.
4. Conversely, the learned counsel appearing on behalf of respondents No.1 to 5 contends that the trial of the case is almost concluded as after the recording of entire prosecution evidence the statements of the accused persons under Section 342 of the Code of Criminal Procedure, 1898, stand recorded and that at this stage summoning of respondents No.1 to 5, who have already been declared innocent by the Investigation Agency because of the deficient and unreliable evidence against them, would result into re-trial of the co-accused persons already facing the agony of trial.
He further contends that the orders passed by both the learned courts below are based on facts and correct appreciation of relevant law. Learned counsel for the private respondents also maintains that the contentions raised by the learned counsel for the petitioner/complainant are not tenable in the eye of law. By arguing that the summoning of respondents No.1 to 5 at this belated stage would be nothing but abuse of process of law as because of deficient evidence there is no chance of eventual conviction of respondents No.1 to 5, craves for dismissal of instant writ petition, the scope of which is very limited in such like matters.
5. Heard. Record available with the file perused.
6. I have observed that Mst. Tazeem Jan, Mst. Shahnaz Bibi and Mst. Pervaizan Bibi (respondents No.2, 4 & 5) have specifically been nominated by the petitioner/complainant in her statement recorded under Section 154 of the Code of Criminal Procedure, 1898, and thereafter when the abductee Mst. Khushnood Bibi was recovered by the police from the possession of Babar Khan co- accused, she got recorded her statements under Sections 161 & 164 of the Code of Criminal Procedure, 1898 and implicated respondents No.1 and 3 by assigning a specific role of causing her injuries and subjecting her to torture for which she was medically examined through police. Prior to recording of evidence by the learned trial court, the petitioner moved an application for summoning of respondents No.1 to 5 to face the trial being her nominated accused persons but the learned trial court kept the mentioned application pending for fourteen long months not only without passing any order qua the same not for any justified or plausible reason but during the said period also kept on proceeding with the trial mysteriously. Despite of the fact that the witnesses, i.e. Petitioner who appeared as PW-1 and the star witness of the case Mst. Khushnood Bibi who was produced by the prosecution as PW.3 fully implicated the respondents No.1 to 5 in their statements recorded on 30.10.2014 and 06.11.2014, respectively, by the learned trial court, the learned court did not bother to pass any order upon the supra mentioned application of the petitioner till 21.05.2015. I am shocked by the above mentioned conduct of the learned trial court and find myself unable to understand that even after recording the statements of petitioner/complainant (PW.1) and the abductee (PW.3), the most material witnesses of this case what else was required to issue process against respondents No.1 to 5 when there is no cavil to the established proposition that for issuance of process against the accused persons only existence of reasonable grounds to proceed with the trial is the requirement of law. The availability of evidence sufficient to prove the allegation against the accused is the requirement to give finding of guilt against him which can only be done after the complete trial. It is also noticeable that the learned trial court while passing the impugned order has based its finding on the result of investigation without giving its own observation qua the available evidence and even the evidence recorded by itself has not been discussed. It seems that both the learned courts below have passed the impugned orders keeping in consideration only the final stage of trial but unfortunately without reckoning the requirements of fair trial, interest of justice and the time when the application for summoning of accused/respondents was presented. To cut it short, I find it expedient and advantageous for better understanding to refer the esteemed judgment passed by the Hon'ble Supreme Court of Pakistan in case titled The State through National Accountability Bureau, Islamabad v. Haji Nasim-ur-Rehman (PLD 2005 Supreme Court 270) wherein the Apex Court has observed as under:- "(iii) Because the Courts are required to do justice though the heaven may fall, as has been enshrined in maxim fiat justitia ruat coelum..."
The prime rather only consideration of both the learned courts below should have been the administration of justice through a fair trial and nothing else.
For all discussed above, without giving observations regarding the factual aspects of the matter lest it prejudice the case of either party to the proceedings pending before the learned trial court, this Court is of the opinion that in the present case not only the statements of the witnesses recorded under Sections 154, 161 & 164 of the Code of Criminal Procedure, 1898, are available against respondents No.1 to 5 but on oath statements of PW.1 and PW.3 besides Medico Legal Examination Certificate are also available on file which are sufficient to issue process against respondents No.1 to 5, hence the instant writ petition is allowed and both the impugned orders dated 21.05.2015 and 30.09.2015 passed by the learned trial court and learned revisional court are hereby set aside. The learned trial court is directed to issue process against respondents No.1 to 5 forthwith and to complete the trial swiftly preferably within a period of six months and to ensure the same the court may proceed with the trial on day to day basis keeping in view the delay in dispensation of justice, already taken place.