' FAHEEM AHMED SIDDIQUI, J.---This Criminal Revision under section 435 read with section 439, ,Cr.P.C. Is filed against the order dated 15-12-2015 passed by learned Additional Sessions Judge, Pano Akil, on the application under section 193, Cr.P.C., whereby applicants were summoned by issuance of bailable warrant to face trial as an accused in a criminal case initiated upon FIR No,19 of 2012 lodged at Police Station Cantt Pano Akil.
2. Concisely, the facts are that the respondent No,1 lodged FIR alleging that the nephew of complainant namely Gulzar Ahmad who had contracted marriage on free will with one Bashira and to such marriage the relatives of Bashira namely Ghulam Nabi and others were annoyed. They declared complainant party as Karo and issuing threats of murder to them. On 26-03-2012, in the morning time, complainant along with his uncle namely Karam Din, Ghulam Hayder and Ali Ahmed, while riding on different motorcycles, were going to attend their duties or personal work and when they reached at Dolat Khan Domki at 07.00 a.m., they saw nine persons hidden in the wheat crop, who suddenly emerged to road and stop the motorcycle of Karam Din and called out that as they were Karo therefore they would not be spared. The complainant party identified the accused persons including the applicants and others. It is further stated in the FIR that on the instigation of applicant No, 1, the other accused persons caused backside of hatchets and lathies blows upon Karam Din who raised cries and fell down. The accused person also caused lathies and hatchets blows to the uncle of complainant namely Ghulam Hayder, who also fell down. The complainant party raised cries which attracted the villagers but meanwhile the accused persons, after snatching valuable articles and a licensed pistol from the complainant party, succeeded in running away from the scene of offence.
3. After registration of FIR, the investigation was begun and during investigation, the Investigating Officer recorded statements of some people under section 161, Cr.P.C. And relying on those statements, he filed the Final Report by placing the names of applicants under Column No, 2 before concerned Judicial Magistrate who forwarded the matter to the Sessions Court. Meanwhile, an application was presented before the court of Additional Sessions Judge (Hadood) under section 193, Cr.P.C., for taking cognizance against the accused persons but the learned Additional Sessions Judge disposed of the same vide order dated 10-5-2014 by observing that such application would be considered if any material came on record after the examination of the complainant and eye- witnesses. The case was subsequently entrusted to learned Additional Sessions Judge (Pano Akil) where the examination-inchief of the complainant was recorded, thereafter, the learned DDPP filed application under section 193, Cr.P.C., whereupon the learned trial judge summoned the applicants by issuing bailable warrants to face trial. By feeling themselves aggrieved with the said order; applicants filed the instant Criminal Revision.
4. The learned counsel for the applicants argued at length. Mainly his contention is that in the instant matter on an application under section 193, Cr.P.C., the Additional Sessions Judge (Hadood) has already passed an order according to which an application for inclusion of the applicants in trial could only be filed after recording of the evidence of complainant and eye-witnesses.
According to him, that order was violated by the trial judge and he issued bailable warrant at a stage when even the examination of the complainant was not completed as he had yet not been cross-examined. He contented that the learned trial judge has to issue notice first and give applicants a chance of hearing before passing any order. According to him, the learned trial judge could not pass an order of including the applicants in trial unless the complainant and eye- witnesses would not be examined and a chance of hearing should be extended to applicants so that they may clarify their position.
5. In contrast to above, the learned counsel for the respondent supported the impugned order. He submitted that the complainant had already challenged the order dated 10-5-2014 under a revision before this court but the same was withdrawn after passing the impugned order as the purpose of inclusion of the applicants in the trial was fulfilled. According to him, sufficient material has come on record to justify the inclusion of applicants for facing trial. He contended that the investigating officer has filed an incorrect report due to incitement of the applicants. The learned APG submitted that the trial judge has to consider the earlier order and perhaps that was not in the knowledge of the trial judge that is why the matter may be remanded for passing the order after recording of statements of eye-witnesses.
6. I have heard the arguments advanced by the learned members of the Bar and the learned APG.
The very contention of the learned counsel for the applicants is that the trial court cannot associate the applicants as accused in the trial without giving them notice and without fulfilling the observation made by the learned Additional Sessions Judge (Hadood) in his order dated 10-5- 2014. It is worth noting that the observation of learned additional Sessions Judge (Hadood) was nothing but a guideline for the complainant party to move application after recording of the evidence of the complainant and eye-witnesses. Meaning thereby that if any material comes on the record after recording of evidence of complainant as well as eye-witnesses than the complainant party will be justified in moving an application for inclusion of the applicants in the trial. It does not imply that the examination of the set of complainant and eye-witnesses must be taken place before entertaining an application under section 193, Cr.P.C. I am of the view that the trial court is fully empowered to pass an order for joining the accuse of Column No, 2 of the Charge-sheet as soon as any material is come on record or brought into the notice of the trial court.
7. There is absolutely no doubt about the proposition of law that the investigation report submitted by the police under section 173, Cr.P.C. Is not binding on the Court and it is for the Court to determine whether there is sufficient material before it to join the accused of Column No,2 of the Charge-sheet or not. In this respect, the trial Court has vast powers and even the Court may pass an order for joining of such accused persons without any formal application. It is not the requirement of the law that before summoning an accused, whose name appears in Column No, 2, to face the trial the trial court should first record evidence, but the Court can directly summon him to stand trial. While discussing about a similar situation in which accused were not only placed in Column No, 2 but they were subsequently discharged by the area magistrate, the Apex Court in the case of Wiqarul Haq alias Nitho another v. The State (1988 SCM R 1428) observed as "The accused person whose name appears in column No,2 of the challan can be summoned by the trial Court directly to stand the trial and it is not necessary that first some evidence should be recorded. In the present case the Challan against the petitioners had not been cancelled by placing them in column No,2. It only meant that according to the police investigation they were found innocent, and therefore, they were discharged under section 63 of the Cr. P.C. However it does not mean that they could not be summoned to stand trial by the Sessions Court".
8. A similar legal proposition was also discussed by the Hon'ble Supreme Court in the case of Safdar Ali v. Zafar lqbal and another (2002 SCM R 63), which is as under:- "It is well-settled by now that the 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: There is no cavil to the proposition that the accused placed in column No, 2 of challan cannot be summoned by the learned 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."
9. In the present case, the learned Judge passed the impugned order after recording the statement of the complainant, though technically it cannot be considered as evidence but it has brought some material on record against the applicants to justify their inclusion in the trial.
Besides, it is least necessary for the trial judge to record evidence before summoning the accused persons of Column No,2 to face trial in view of the cases, of Wiqarul Haq (supra) and Safdar Ali (supra). I, therefore, find no merits in the instant revision and the same is dismissed.