Sardar Muhammad Sarfraz Dogar, J.- The petitioner, namely, Dr. Muhammad Bilal Ghafoor, by filing the instant revision petition under section 439, Cr.P.C. has called in question the order dated 27.06.2009 passed by the learned Additional Sessions Judge, Rahim Yar Khan, whereby he had been summoned to face trial in a criminal case arising out of F.I.R. No. 144 of 2007, dated 29.3.2007, registered at Police Station City A- Division, District Rahimyarkhan for an offence under section 302, P.P.C.
2. Succinctly, facts leading to the revision petition are that the above-referred F.I.R was lodged on the basis of an application moved by Masood Akbar Khan Kanju/respondent to the police alleging therein that Fakhar Mahmood Akbar Khan Kanju (deceased) was his brother who had been elected as Union Nazim and Union Councilor of Rahim Yar Khan. On the day of occurrence, a public meeting of Makhdoom Ahmad Mahmood, President Pakistan Muslim League (Functional) Punjab was to be held in Jamal Din Wali. The police took into custody certain Nazims and influential persons since the last night/evening in order to prevent them from welcoming the aforesaid Makhdoom Ahmad Mahmood. Therefore, in the last night at about 1.00 a.m. the police officers and officials in the presence of the complainant, Ahmad Hameed son of Abdul Hameed and Shahid Mahmood son of Asmat Ullah took Fakhar Mahmood Kanju into custody for restraining him from participating in the public meeting and tortured him mentally, psychologically and physically, as a result of which, it came to know that the dead body of his brother was lying at Sheikh Zayad Hospital, Rahimyar Khan. On the information of Press Reporter, the complainant reached there and saw that postmortem examination had been conducted on the dead body of his deceased brother and the dead body was lying there helpless. According to the complainant, his brother died in police custody and the deceased had been murdered after harassing and giving him mental, physical and psychological torture.
3. Since the police had already got conducted the autopsy on the dead body of Fakhar Mahmood deceased declaring him as unknown person but respondent No. 2 being dissatisfied with the said postmortem report made representation to the District Police Officer, Rahim Yar Khan, who requested the learned Sessions Judge, Rahim Yar Khan for holding judicial inquiry in the matter. The learned Sessions Judge thus appointed the learned Senior Civil Judge/Magistrate Section 30, Rahim Yar Khan as an Inquiry Officer and on the application moved by the complainant/respondent No. 2 before the learned Illaqa Magistrate for constitution of Medical Board re-examination of the deceased's corpse was again conducted on the same day, i.e. 29th March, 2007 by the District Standing Medical Board.
4. On 10th of November, 2007, the learned Inquiry Officer/Senior Civil Judge, Rahim Yar Khan submitted his report of Judicial Inquiry regarding death of Fakhar Mahmood Akbar Khan Kanju (deceased), wherein he concluded as under:- "8. Keeping in view the statement of Masood Akbar, affidavits of Muhammad Shahid Mehmood, Ahmer Hameed Kanju and Ehsan-ul-Haq 739/C, it stands proved that police party arrested Fakhar Mahmood Akbar Khan Kanju from his residence at 1.00 a.m. between the night of 28 and 29 of March, 2007. The version of police stands falsified that they found unknown person lying near "TAKKIA LAL FAQEER" graveyard, which was sent to Hospital for medical treatment/postmortem. From evidence on record, mentioned supra, this court is of the affirm opinion that on the night falling between 28 and 29 of March, 2007, police party arrested Fakhar Mahmood Akbar Khan Kanju from residence and took him to police station. As per report of Medical Board, Fakhar Mahmood Akbar Khan Kanju sustained five injuries, mentioned in detail in Para No. 2 of this report. Bacteriologist report also corroborated the report of Medical Board that ante- mortem injuries were found on the person of Fakhar Mahmood Akbar Khan Kanju. In view of above discussion, it stands proved that Fakhar Mahmood Akbar Khan Kanju died on account of police torture."
5. After usual investigation, complete challan of the case was submitted in the court of learned Sessions Judge, Rahim Yar Khan on 25.2.2008 and copies of the documents as required under section 265-C, Cr.P.C. were delivered to the accused on 27.5.2008 and the case was fixed for framing of charge when an application on behalf of the complainant-respondent No. 2 was moved for summoning of Pervaiz Elahi and Dr. Bilal Ghafoor petitioner as according to him a case under section 201 of the Pakistan Penal Code is made out against petitioner Dr. Bilal Ghafoor for willfully destroying the evidence, whereas, against Ch. Pervaiz Elahi, Ex-Chief Minister, Punjab offence under sections 302/324/34/120-B/109 PPC is made out. The learned trial court through the impugned order dated 27.06.2009 accepted the said application while declaring as under:- "5. Perusal of record shows that there is sufficient material on record to show the connectivity of the above two named persons with the commission of this offence. In view of the above, I am, therefore, inclined to allow this application.
6. Learned counsel for the petitioner contends that the impugned order is not a speaking order; that instead of any material available on the record the report submitted on Judicial Inquiry was illegally considered by the learned Additional Sessions Judge for passing the impugned order; that even the said report has not been appreciated in its true perspective; that neither the petitioner was named in the F.I.R. nor was his name placed as an accused in any of the columns of the report submitted under section 173, Cr.P.C.; that as a matter of fact the petitioner's name was mentioned as a witness in the report under section 173, Cr.P.C. that the complainant never ever submitted any complaint against the petitioner, however, he has been summoned to face the trial just on the application which was submitted by the complainant during pre-trial proceedings pending against the accused named in the report under section 173, Cr.P.C.; that before commencement of the trial and without recording any evidence the learned trial court had no jurisdiction to summon the petitioner to face the trial and that there is no material on the record justifying the order of summoning the petitioner as an accused. In order to shore-up his contentions learned counsel has placed reliance on the cases of "S. Akhtar Sher v. The State and another" (1991 MLD 1977) and "Inayatullah and 4 others v. The State and another" (1999 P.Cr.L.J.
731).
7. Conversely, the learned DDPP appearing on behalf of the State as well as learned counsel for the complainant has vehemently opposed the petition, contending that the learned trial court can summon the accused to face the trial and there is no legal bar whatsoever that at the first instance evidence should be recorded to ascertain as to whether prima facie case is made out against him; that the petitioner may be joined as co-accused to face the trial and defend his case so that the truth may come on the record; that the grounds urged by the learned counsel for the petitioner will require deeper appreciation of material available record, which exercise cannot be undertaken at this stage; that the petitioner has to face trial and prove his innocence before the learned trial court; that the impugned order dated 27.06.2009 is perfectly legal and is based on valid and sound reasons. Referring to the judgment in the cases of "Waqar-ul-Haq" v. The State"
(PLD 1988 Lahore 336) and "Waqar-ul-Haq v. The State" (1988 SCMR 1428), he submits that the Court has to take cognizance of the offence and not accused persons, therefore, any person who appears to be involved, can be summoned notwithstanding the fact that he was found innocent during the investigation; that while summoning the accused person the trial court is not bound to record evidence or reasons as held in the cases of "Muhammad Hanif and another v. The State"
(1979 P.Cr.L.J. 1078) and "Waqar Ilias and another v. The State through Federal Investigating Agency, Commercial Banking Cell, Quetta" (PLD 1993 Quetta 49); that though the petitioner was not named in the F.I.R. but he was implicated by the complainant subsequently and the learned trial Judge had power to summon any person even his name is mentioned in column No. 2 of the challan.
Reliance is placed on "Safdar Ali v. Zafar Ipbal" (2002 SCMR 63).
8. I have heard the learned counsel for the parties and have also gone through the record as well as the esteemed judgments of the apex court referred to by the parties.
9. The moot point involved in this case for determination of this Court as to whether before commencement of the trial and without recording any evidence the learned trial court had jurisdiction to summon the petitioner to face the trial when neither the petitioner was named in the F.I.R. nor was his name placed as an accused in any of the columns of the report submitted under section 173, Cr.P.C.; rather his name was mentioned as a witness in the report under section 173, Cr.P.C.?
10. No doubt, the trial court has ample power to summon an accused person against whom some material is available and court is convinced that the accused is involved in the commission of offence. In the instant case while lodging the F.I.R. the complainant/respondent No. 2 never raised accusing finger towards the petitioner, a fact which can be ascertained by going through the contents of the F.I.R., which does not contain the name of the petitioner as an accused of this case and even during the investigation none of the prosecution witnesses implicated the petitioner as an accused while making their statements under section 161, Cr.P.C. Likewise, while submitting the report under section 173, Cr.P.C., the petitioner's name was not included in the list of accused of this case and even in the supplementary reports the petitioner's name did not figure as an accused of this case. Even otherwise, the complainant never filed any private complaint against the petitioner or any other accused, however, during pre-trial proceedings the complainant filed an application for summoning the petitioner as well as Ch. Pervaiz Elahi, Ex. Chief Minister of the Punjab as accused of this case and without framing any charge or recording any prosecution evidence the learned trial court illegally summoned the petitioner as an accused on the basis of the said application. The learned trial court instead of relying upon any material available on the record of this case relied upon the report of judicial inquiry which could not be considered as a substitute or equivalent to evidence. Although the trial court is competent to call/summon any person and to join him as co-accused during the trial, but such power, is to be exercised when there is sufficient material before the Court connecting that person in the alleged offence and the Court has to rely on the record of the proceedings of the trial or the material collected by the Investigating Agency and not extraneous material which does not form part of the record of the investigation. Reliance is placed on "Inayatullah and 4 others Vs. The State and another" (1999 P.Cr.L.J. 731), wherein in para No. 5, it has been observed as under:- "Indeed, a Trial Court is competent to call/summon any person and to join him as co-accused during the trial but such power is to be exercised when there is sufficient material before the Court connecting such person in the alleged offence. By the terms "material before the Court", I mean the record of the proceedings of the trial or the material collected by the Investigating Agency and not extraneous material which does not form part of the record or of the investigation. In S. Akhtar Shaikh (supra) a learned Judge of Balochistan High Munawar Ahmed Mirza (as his Lordship then was) while following the rule laid down in the case Doran Khan v. State PLD 1985 Quetta 188 and Muhammad Ibrahim and others v. Qudratullah Ruddy and others PLD 1986 Lah. 256 held, inter alia, that the Sessions Court has no jurisdiction to summon the accused mentioned in Column No. 2 of the challan/charge-sheet or against whom evidence is found deficient during enquiry or recording of evidence. In Muhammad Khan (supra) it was held by my learned brother Abdul Hameed Dogar, J. that "no doubt Court of Sessions can take cognizance of the offence and summon any person as accused as is envisaged under section 193 (1), Cr.P.C. but in appropriate cases where incriminating evidence is available on record of the case or when some material implicating him is brought on the record after evidence is recorded at the trial."
11. The facts and circumstances to some extent are similar with the case reported as "Rao Jamshad Ali Vs. The State" (2003 YLR 836), in the said case, the accused was neither named in the FIR nor in column No. 2 or No. 3 of the challan and he was not sent up for trial by the Magistrate to the Sessions Court--- Sessions Court had summoned the accused without recording any evidence on the record---The relevant portion from the above referred judgment is reproduced as under:- "xxx The name of the present petitioner does not figure either in Column No. 2 or in Column No. 3 of the challan. He was also not named in the F.I.R. Now the prosecution has spread the net wide by extending the number of accused from 4 to 5. He was implicated by the complainant two months after the occurrence in his supplementary statement. He was not sent up for trial by the learned Magistrate to the Court of learned Sessions Judge. Learned Additional Sessions Judge has summoned the petitioner without recording any evidence whatsoever on the record. Reliance is placed on PLD 1986 Lahore 256 titled as Muhammad Ibraheem v. Qudrat Ullah Ruddy and others, in which Mr. Rustam S. Sidhwa, J. (late) had come to the conclusion that an accused person discharged by the police cannot be summoned unless the evidence of an eye-witness is recorded by the learned trial Court including the cross-examination on the said witness and therefore if the learned trial Court comes to the conclusion that there is sufficient material on the record against the said accused then the learned trial Court had a right to summon that accused which is totally lacking in the instant case.
12. The Court has to look at the material available with the police and produced by the prosecution in the Court and if sufficient evidence for involvement of the petitioner in the commission of offence is available on record, the Court is competent to summon such person to face trial. The case in hand is not covered within the above-referred requirement of law. Even otherwise, process is not to be issued in every criminal case as a matter of course and the process is issued only when the material produced is found to be sufficient. Reliance is placed on "Muhammad Salim and 4 others Vs. Fazal Muhammad and another" (2001 SCMR 1738), wherein it has been held as under:- "Aggrieved person, no doubt has, a right to agitate his grievance for redress either before the police or before the Court, but where no justification and proper explanation is given for inordinate delay and the material produced by him is insufficient, Criminal Court would be justified in not issuing the process--- Process is not to be issued in every criminal case as a matter of course--- Each and every complaint is to be scrutinized and the material produced is to be examined and the process is issued only when the material produced is found to be sufficient."
13. Apparently without commencement of trial or recording evidence, learned Additional Sessions Judge, Rahim Yar Khan had no jurisdiction to summon the petitioner whose name was not placed as an accused in any of the columns of the report submitted under section 173, Cr.P.C.; rather his name was mentioned as a witness in the report under section 173, Cr.P.C. Even otherwise, he was also not named in the F.I.R. nor the witnesses in their statements recorded under section 161, Cr.P.C. have stated anything against the petitioner. I am mindful with the fact that a person can be summoned by the trial court under section 190 of the Code of Criminal Procedure on a police report under section 173, Cr.P.C. or on the basis of a complaint lodged under section 200 or 202, Cr.P.C., for which certain mandatory conditions precedents and formats have been prescribed under section 265-C, Cr.P.C. and a specific mandatory procedure laid down in sections 200 to 204, Cr.P.C., whereas, no such complaint has ever been lodged by the complainant against the petitioner before any competent forum as such the learned trial court while passing the impugned order has failed to appreciate the import of provisions of sections 190, 173, 200 or 202, Cr.P.C. Thus, it is clear that the order was not passed by the learned trial court after consideration of the evidence against the petitioner but as a mechanical order accepting the application of the complainant.
14. There is yet another important aspect of the matter that throughout the case the claim of the complainant remained that since the deceased was supporter of Makhdoom Ahmad Mahmood, who had political rivalry with Pervaiz Elahi, Ex-Chief Minister of Punjab, therefore, the deceased has been murdered by the police during custody under the order of Pervaiz Elahi and through the impugned order dated 27.6.2009 passed by the learned Additional Sessions Judge, Rahim Yar Khan, said Pervaiz Elahi, Ex-Chief Minister of Punjab was also summoned by the learned trial court to face trial. Against the said order, Crl. Revision No. 121 of 2009 was preferred before this Court by said Ch. Perviaz Elahi, which was disposed of by this Court vide order dated 28.3.2016 as the petitioner in the said revision petition has effected compromise with the legal heirs of deceased Fakhar Mehmood Akbar Kanju. The allegation against the petitioner is that postmortem report issued by him did not find mention the injuries on the body of the deceased on the instigation of said Pervaiz Elahi. In this way of the matter, when the legal heirs of the deceased after satisfying themselves regarding the innocence of Pervaiz Elahi, Ex. Chief Minister of the Punjab against whom allegation regarding commission of offence under sections 302/324/34/120-B/109 PPC was levelled, have effected compromise with him, summoning of the petitioner to face trial as an accused will be futile exercise in the absence of any independent corroborative piece of evidence against him on record.
15. So far as the contention of learned counsel for the respondents that the postmortem was conducted in a haste by the petitioner with the intention to suppress the truth of the occurrence as he did not mention any wound or injury on any part of the body of the deceased in the postmortem report issued by him, whereas, the opinion of the District Standing Medical Board, was otherwise, as according to the opinion of the District Standing Medical Board there were 5 injuries on the body of the deceased, is concerned, it may be observed that in the report of first postmortem examination conducted by the petitioner on 29.03.2007 at 10.15 a.m., he clearly opined that "On conducting thorough internal and external postmortem examination it was found that there is no wound or injury present on any part of the body. No ligature mark found/detected around neck, writ, elbow, knee and ankle. Sample of hyoid bone, lungs, heart and brain taken, sealed and sent to Histopathologist/Bacteriologist, Government of the Punjab Lahore for expert opinion. Sample of formalin also sent to Histopathologic/Bacteriologist. However, sample of liver, spleen, kidney, stomach, large and small gut and sample of normal salience sent to chemical examiner Lahore for chemical analysis and detection of poison, alcohol or any addictive substance. Cause of death will be declared after receiving reports of chemical examiner and Histopathologist/ Bacteriologist,-- K.U.O." On the other hand, second postmortem examination on the dead body of the deceased was conducted by the Standing Medical Board on the same day, i.e. 29.3.2007 at 7.20 p.m. and DMB noted the following injuries:-
1. A contusion 3 cm x 2 cm on middle of left side of neck. On dissection/cut section no extravasation of blood/hemorrhages seen in the subcutaneous tissues of said area. Skin and sub cutaneous tissues taken and sent to Bacteriologist for histopathology to rule out ante-mortem or post-mortem injury.
2. A contusion bluish 5 cm x 3 cm on middle of right side of neck on cut section, no extravasation of blood/hemorrhages seen in the subcutaneous tissues of the area. Skin and sub cutaneous taken and sent to Bacteriologist for histopathology to rule out ante- mortem/postmortem injury.
3. A bluish contusion 8 cm x 4 cm on right iliac fossa. On cut section no extravagated blood/hemorrhages seen in the subcutaneous tissues. Skin and sub cutaneous tissues taken and sent to Bacteriologist for histopathology to rule out ante-mortem/postmortem injury.
4. A reddish contusion 2 cm x 1 cm on ventral aspect of left elbow joint. On cut section no extravasation of blood/hemorrhages seen in the subcutaneous tissues, sent to Bacteriologist for histopathology to rule out ante-mortem/postmortem injury.
S. A reddish contusion 6 cm x 3 cm on medial side of left knee joint. On cut section no extravagated blood/hemorrhages seen in the subcutaneous tissues taken and sent to bacteriologist for histopathology to rule out an t-mortem/post-mortem injury.
The Board in its remarks has clearly mentioned that "after conducting the autopsy the board is of the unanimous opinion that the observed injuries, 1-5 may be caused by blunt weapon. However, its nature regarding ant-mortem /postmortem will be ascertained after receiving reports from bacteriologist/Histopathologist, Government of Punjab, Lahore.
The cause of Death will be given after the receipt of reports from Bacteriologist /Histopathologist and Chemical Examiner Lahore, Government of Punjab."
If both the above-said opinions are taken in juxtaposition, it will be clear that the petitioner as well as the District Standing Medical Board did not give any opinion regarding the cause of death of the deceased and the cause of Death will be given after the receipt of reports from Bacteriologist /Histopathologist and Chemical Examiner Lahore, Government of Punjab."
16. Furthermore, as per Chapter 4, "The Pathology of Wounds" of Knight's Forensic Pathology Fourth Edition By Pekka Saukko, Bernard Knight, it is impossible to tell whether a superficial abrasion occurred immediately before or after death if there was insufficient time for any inflammatory reaction to occur at the margins. Post-mortem abrasions are common, especially after autopsy when the body is reexamined, because mortuary instruments and the moving of bodies into refrigerators and coffins can often make marks. These abrasions commonly appear yellow and translucent, and are absolutely devoid of any colour change at the edge. It is common knowledge among lay people, as well as doctors, that a bruise may 'come out'--that is, become more prominent with the passage of hours or days. This is partly caused by continued bleeding from the ruptured vessels, but mainly by percolation of free blood from its origin deeper in the tissues upwards towards the epidermis. Another factor may be hemolysis, when the freed hemoglobin is able to stain the tissues in a more diffuse way and become more noticeable than intact red blood cells. This latter mechanism is certainly the reason not only for the well known post-mortem phenomenon of bruises becoming more prominent after death, but of new bruises appearing later where none was visible at an autopsy performed soon after death.
17. In this view of the matter, it cannot be said with certainty that the petitioner has suppressed the injuries intentionally which might be occurred after conducting the first postmortem examination and became prominent with the passage of time`.
18. Judgement relied upon by the learned counsel for the complainant and the learned DDPP i.e. 2002 SCMR 63, is totally inapplicable in this case having different facts and circumstances of the case. In the instant case i.e. 2002 SCMR 63, the accused was placed in column No. 2 and the learned trial court had summoned him. There is no cavil to this proposition while circumstances and facts of the present case are totally different. The other case law cited by the learned counsel for respondent No. 2 is also not applicable to the facts and circumstances of the present case as in all the referred cases the petitioner was not a witness who was subsequently summoned as an accused to face trial by the learned trial court on the application of the complainant.
19. For what has been discussed above, this petition is accepted and the impugned order dated 27.06.2009 passed by the learned Additional Sessions Judge, Rahim Yar Khan is set aside.