ALI BAIG, J.---Through the instant criminal revision petition, the petitioner has challenged the impugned judgment/order dated 17.3.2018 passed by the learned Additional Sessions Judg e, Diamer whereby the learned trial Court has summoned the petitioner/accused namely Luban son of Mohammad Sharif resident of Fughuch Darel District Diamer who was discharged under section 169, Cr.P.C. by the Police and his name was placed in column No.2 of format of challan.
2. The brief facts leading to the filing of the instant criminal revision petition are that complainant Nakeel Khan had lodged FIR No.19/1996 under sections 302 and 307, P.P.C. at Police Station Darel District Diamer on 22.5.1996 stating therein that on 22.5.1996 at 7:30 A.M Master Azeem Khan, Master Mohammad Afzal and Master Mohammad Ghani were going to School at Kotokish to perform their duty. When they reached near Batali Phukuch Kote, accused/petitioner namely Luban and his co-accused namely Gul Safaid and Abdur Raqeeb intercepted the above named persons and opened fires with Kalashankove on them. Resultan tly, the accused above named committed murder of Master Azeem Khan and Master Mohammad Afzal also sustained injuries during the occurrence. Motive behind the occurrence is stated to be old enmity between the parties.
3. After registration of above said formal FIR, police started investigation in the case and during investigation police discharged present petitioner/accused namely Luban under section 169, Cr.P.C. due to insufficient evidence against the present petitioner/accused. Charge sheet/ challan against co-accused of the present petitioner namely Gul Safaid and Abdur Raqeeb was submitted in the trial court for trial of the above named accused. After conducting full-fledged trial the learned trial court has acquitted accused namely Abdur Raqeeb vide judgment dated 7-12-2012 as co-accused namely Gul Safaid had absconded during the trial of the case.
On 30-11-2015 the accused namely Gul Safaid was arrested and he was committed to judicial lock-up at Chilas and faced the trial. The case of accused namely Gul Safaid was fixed for recording of his statement under section 342, Cr.P.0 . In the meanwhile the learned counsel for the above named accused filed an application under section 265-K, Cr.P.C. The learned trial court while allowing the petition of the above named accused filed under section 265-K; Cr.P.C. has summoned the present petitioner/accused holding that "perusal of record reveals that the eye-witnesses to the occurrence have attributed overt act to the accused Luban while he has been discharged by police for no good justification, therefore, the release of accused Luban under section 169, Cr.P.C. is recalled."
4. Feeling aggrieved by the above said impugned order passed by the learned trial court, the petitioner/ accused has challenged the impugned order through the instant criminal revision petition before this Court.
5. The learned counsel appearing on behalf of the petitioner/accused contended that the impugned judgment/ order passed by the learned trial court is contrary to law and facts on the record of the case as such the impugned judgment/order passed by the learned trial court is not maintainable and liable to be set aside. The learned counsel for the petitioner/ accused further argued that eye-witness/ injured person namely Mohammad Afzal has stated in his statement recorded under section 161, Cr.P.C. by the police that accused namely Gul Safaid and Adbur Rageeb had opened fires on the deceased Azam Khan and on him. Later on present petitioner/accused Luban was also got implicated in the FIR after due deliberation and consultation by the complainant. The learned counsel for the petitioner/accused further argued that even co-accused of the present petitioner/ accused namely Gul Safaid and Abdur Raqeeb have already been acquitted by the learned trial court, hence there is no justification to summon the present petitioner to face the trial as there is no probability of accused/petitioner being convicted of any offence on the basis of evidence already recorded by the trial Court.
6. On the other hand the learned Dy. Advocate General controverted the arguments advanced by the learned counsel for the petitioner/accused by contending that since both the eye-witnesses namely Mohammad Afzal and Mohammad Ghani have fully implicated the petitioner accused in their statement recorded before the learned trial court, therefore, the learned trial court has rightly summoned the petitioner/accused to face trial.
7. I have carefully considered the arguments advanced by the learned counsel for the petitioner as well as the learned Dy . Advocate General and perused the material available on record.
8. Although the complainant namely Nakeel Khan son of Gul Saeed who is not eye-witness of occurrence has directly nominated the present petitioner/accused namely Luban along with co-accused namely Gul Safaid and Abdur Raqeeb in the FIR for commission of offence of murder of deceased Azam Khan. The complainant has also disclosed names of Master Mohammad Afzal and Master Mohammad Ghani as. eye-witnesses of the occurrence.
The above named eye-witnesses have not implicated the petitioner/accused in their statements recorded under section 161, Cr.P.C. by police and even eye-witness namely Muhammad Afzal has stated in his statement recorded under section 161, Cr.P.C. that accused Luban had been involved in this case /FIR after due deliberation/ consultation by the complainant. Accordingly the Investigating officer has discharged the present petitioner under section 169, Cr.P.C. due to non availability of sufficient evidence against him. Investigating officer has been empowered under section 169, Cr.P.C. to discharge the accused person in custody on executing a bond, if he finds that the evidence is not sufficient or there is a lacks of reasonable grounds to justify forwarding of the accused to a Magistrate or Court to face trial, hence the concerned Investigating officer has legally and rightly released/discharged the accused/present petitioner under section 169, Cr.P.C. as both the above named eye- witnesses have not implicated/ involved the petitioner in the instant case in their statements recorded by the police under section 161, Cr .P.C.
9. It is pertinent to mention here that the above named eye-witness is have implicated the present petitioner /accused in their statements recorded before the learned trial court and accordingly the learned court has summoned the petitioner/accused to face the trial as the trial court has discretion to summon the accused who has been discharged by the police under section 169, Cr.P.C. and whose name is placed in column No.2 of format of challan.
10. In the present case the eye-witnesses have categorically exonerated the accused/petitioner in their statements recorded by the police under section 161, Cr.P.C. but the above eye-w itnesses have implicated the petitioner/accused in their statements recorded by the learned trial court which is a dishonest and deliberate improvement, and cannot be allowed to prevail in the given circumstances of the case, in hand.
11. Moreover , the above named eye-witn esses/ P.Ws had also equally implicated /charged the present petitioner/ accused and his co-accused namely Gul Safaid and Abdur Raqeeb in their statements recorded before the trial court who have already been acquitted by the learned trial court vide impugned judgments dated 17.12.2012 and dated 13.3.2018. Hence, there is no probability of the present accused/petitioner being convicted of any offence on the basis of available evidence , thus it would be futile exercise and abuse of process of court to summon the petitioner/accused to face the trial.
12. It would not be incongruous to mention here that even the complainant has not requested/filed any application to summon the present petitioner/accused to face the trial, so the impugned order/ judgment to the extent of summoning the petitioner is not tenable and liable to be set aside.
13. For the reasons mentioned here inabove, this criminal revision petition is allowed and impugned judgment dated 17-3-2018 passed by the learned Additional Sessions Judge Diamer to the extent of summoning of the petitioner/accused to face trial is set aside. Certified true copy of this judgment be sent to the learned Additional Sessions Judge Diamer for his information and further necessary action. File.