MALIK HAQ NAWAZ, J.---Through the instant petition, - the petitioners seek quashment of order passed by the learned Addl. Sessions Judge Diamer, whereby the learned trial Court summoned them to face trial in FIR No. 40/2015 of Police Station Darel.
2. According to the FIR registered on the written application of complainant Abdul Jalil son of Noor Said, complaint reported to the police that on 17.8.2015 at 1600 hours respondents Nos. 1 to 3, alongwith one Irshadullah son of Ayaz, intruded into his house and assaulted on the ladies and seriously injured them. Both the injured ladies were taken to civil hospital Darel and after first aid they were referred to DHQ Chilas for further treatment.
3. After registration of FIR the investigation of the case was entrusted to ASI Dilbar Khan, who recorded the statements of victim/injured ladies namely Mst. Zalmeen wife of Abdul Ghafoor and Sharangi wife of Noor Said on 18.09.2016. The I.O. of the case released the petitioners under section 169, Cr.P.C. and submitted the challan only up to the extent of Irshadullah son of Ayaz.
4. The case was sent to the learned Sessions Judge Diamer for trial and was entered in the relevant register as Sessions case No. 44/2016 and later on the same was entrusted to the learned Addl.
Sessions Judge Diamer for further proceedings and was re-numbered as Sessions case No. 228/2016. On 27.10.2016, the learned Addl. Sessions Judge found that initially four accused were charged in the FIR but the local police released three nominated accused without any legal justification. The learned trial Judge, as evident from the order-sheets dated 27.10.2016, 07.12.2016 and 04.03.2017 could not procure the attendance of the I.Os or even SSP Diamer sitting less than a distance of one furlong from the Court, and lastly issued notice to the petitioners on 04.03.2017 to appear in Court on 08.04.2017.
5. Being aggrieved from the order of learned trial Judge, the petitioners filed the instant petition for quashment of the orders of learned trial Court. The learned counsel for the petitioners submitted at bar that the orders of the learned trial Court have been passed in excess of jurisdiction. The learned counsel forcefully argued that there is not an iota of evidence against the petitioners except their nomination in the FIR, by the FIR lodger, who in fact has exaggerated and twisted the facts of the case to paint a horrible picture of the incident. The learned counsel stated further that the I.O. of the case has exercised his powers vested under law and has rightly released the petitioners under section 169, Cr.P.C, due to insufficient evidence. The learned counsel for the petitioners relied on PLD 2013 Peshawar 16 and PLD 2012 Peshawar 39.
6. Conversely, the learned Dy.A.G, argued that the petitioners are directly charged in the FIR and the order of the learned trial Court is in accordance with law and has been passed after due application of judicial mind.
7. I have exhaustively heard the learned counsel for the parties and perused the record of the case with their able assistance.
8. Perusal of FIR reveals that the petitioners/accused along with their co-accused Irshadullah were directly charged in the FIR for causing injuries to the two ladies named above. It is strange to note that complainant got prepared site plan on his pointation, where the place of occurrence has been shown a thorough fare instead of dwelling houses, as claimed in the FIR. The contents of FIR are at variance with the site plan, as in site plan at point No. 1 and at point No. 2, the presence of only accused Irshadullah has been shown, while the presence of the petitioners is found missing. A perusal of the statements of the injured ladies shows that they have nominated only accused Irshadullah and have categorically stated that they have not seen anybody else at the place of occurrence. In the above background, the summoning of the petitioners by the trial Court would be a futile exercise. By virtue of Section 169, Cr.P.C, the I.O. could only release an accused if there is no incriminating evidence against him and if the situation was otherwise, no unfettered powers were conferred upon the I.O. and his actions were always subject to judicial scrutiny by a competent Court of law. The trial Court has unfettered powers to call any of the accused placed in Column-2, of the challan if in his opinion, there was sufficient evidence, which prima facie establish his link with the commission of offence and the trial Court may summon an accused even without recording any evidence. Provisions of Section 169, Cr.P.C, however did not empower the I.O. to evaluate defence evidence and then to form an opinion regarding guilt/innocence of an accused, which is the sole job of the Court.
9. In view of above detailed discussions, I am of the view that the summoning of the petitioners in view of the material available with the prosecution would be a futile exercise, when the proceedings of the case will result in acquittal as the injured ladies have categorically exonerated the petitioners/accused. The order passed by the learned trial Court dated 04.03.2017 is quashed accordingly.
10. This Cr. Misc. No. 54/2017 is disposed of accordingly.