ARBAB MUHAMMAD TAHIR, J.-Through the instant revision petition in terms of Section 435 read with Section 439 of the Code of Criminal Procedure, 1898 (the Code), petitioner namely Dr. Muhammad Hafeez Abbasi (accused in main case) impugns order dated 24.01.2023, passed by the learned Addl. Sessions Judge-VI, Islamabad-West whereby notice for appearance was issued to him in case FIR No. 136, dated 03.02.2022, Under Sections 302, 148, 149, 427, 337-F (ii), 337-F (v)
PPC, Police Station Bahara Kahu Islamabad.
2. Tersely, petitioner is one of the accused in the subject case. After due investigation, report in terms of Section 173 Cr.P.C was submitted against the petitioner before the Trial Court by placing his name in Column No. 2 thereto. The Trial Court vide order dated 24.01.2023 issued notice to the petitioner, being assailed through the instant revision petition for which due audience has been given to the learned counsel for the parties and the learned State Counsel as well.
3. The learned counsel representing the petitioner argued that the impugned order is not only in contravention of the law on the subject but also at variance with the preceding order whereby attendance of the petitioner was dispensed with till any evidence against him comes on record; that the Trial Court is vested with no authority to review its own earlier order and that the instant revision petition in terms of Section 435 read with Section 439 Cr PC is very much competent, therefore, impugned order is liable to be set-aside. The learned counsel relied upon case law reported as 2017 PCrLJ Note 57, 2018 PCrLJ 607, 2020 YLR 1443, 2001 MLD 1330.
4. On the other hand, learned counsel for the complainant defended the impugned order, inter alia, contending that the petitioner is accused of hatching a conspiracy and sufficient evidence in this respect is available on record; that the alleged motive behind the occurrence is also attributed to the petitioner; that the authenticity of the material, made basis to declare the petitioner innocent, would be subject to judicial scrutiny by way of cross-examination; that the petitioner had already surrendered before the Court by submitting surety bonds; that the impugned order is interim in nature and cannot be equated with the final order or judgment; that this Court in revisional jurisdiction cannot indulge into detail scrutiny of evidence and reasoning made basis to summon the petitioner; that ipsi dixit of the police is not binding upon the Trial Court; that on the same set of evidence, the other accused persons were found guilty while the petitioner has been declared innocent, therefore, the summoning of the petitioner, in the attending circumstances, was just and proper. The learned counsel relied upon case law reported as PLD 2007 Supreme Court 9, 2002 SCMR 63, 2012 PCrLJ 848, 2008 PCrLJ 782, PLD 1995 Lahore 293, 1997 PCrLJ 1074 and 2017 MLD 1008.
5. Heard, record perused.
6. At the inception, it is necessary to go through the orders dated 18.01.2023 and 24.01.2023 which read as under:- ORDER DATED 18.01.2023 "Report under section 173 Cr PC to the extent of accused Dr. Muhammad Hafeez son of Mehboob Khan has been received through entrustment which is made part and parcel of the instant case.
Accused Dr. Hafeez has been named at Column No. 2 of the report under section 173 Cr.P.C with opinion of SHO and Investigating Officer that no evidence with regard to abetment of the offence against accused Dr. Hafeez has been brought on record in such state of affairs he shall be called in case evidence is brought on record against the accused."
ORDER DATED 24.01.2023 "I.O. of the case appeared before the Court and stated that a team has proceeded to Balochistan for execution of warrants and the arrest of absconding accused persons who would likely reach back tomorrow, therefore, requested for adjournment for submission of report regarding said accused person.
Notice be issued to accused Dr. Hafeez against whom challan was submitted on last date of hearing. Now to come up for submission of report and attendance of accused on 26.01.2023."
7. The perusal of above two consecutive orders passed by the Trial Court reveals that initially vide order dated 18.01.2023, the Trial Court observed that report under section 173 Cr PC to the extent of the petitioner has been received wherein the name of the petitioner has been placed at Column No. 2 with opinion of SHO and of the Investigating Officer, that no evidence with regard to abetment of the offence against the petitioner has been brought on record and that in such state of affairs the petitioner shall be called in case evidence is brought on record against him. On the contrary, on the next date of hearing i.e. 24.01.2023 the Trial Court observed that notice be issued to the petitioner against whom challan was submitted on the last date of hearing.
8. The orders ibid, on the face of it, are at variance. In the first order, the Trial Court observed that report in terms of Section 173 Cr PC to the extent of petitioner was submitted by placing his name in Column No. 2 of the said report while in the second order it was mentioned that challan was submitted against the petitioner on the last date of hearing. The connotation of `report under section 173 Cr PC and `challan' is not one and the same as in the latter case, police recommends trial of any accused person while in the former case no such recommendations are made by the police. Reliance is placed upon case of "Ahmad Nawaz and another v. The State and another"
(2001 MLD 1330-Lahore) wherein Mr. Justice Asif Saeed Khan Khosa (as his lordship then was) observed that:- "The word challan does not figure anywhere in the Code of Criminal Procedure whereas the same finds a mention in the Police Rules. Investigation of a criminal case and resultant arrival by the police at conclusions regarding guilt or innocence of an accused person lie within the domain and prerogative of the police over which no other authority has any control. All that the Magistrate could have insisted upon in this case was that the Investigating Officer should submit a report under section 173 Cr PC incorporating the final opinion of the police based upon the evidence collected by it during the investigation. A challan is to be submitted by the police only where some accused person is recommended to be tried whereas if no accused person is recommended to be tried in a criminal case then only a report under section 173 Cr PC is to be submitted within any challan accompanying therewith."
9. In view of the legal position explained above, the observations of the Trial Court in the impugned order to the effect that "challan was submitted against the petitioner on the last date of hearing" are contrary to law on the subject and also contrary to its own opinion recorded in the preceding order dated 18.01.2023 wherein it was observed that "report in terms of Section 173 Cr PC was submitted against the petitioner by placing his name in Column No.2 of the said report."
10. The next question is with regard to procedure to be observed by the Court of Sessions for summoning of an accused person. In this respect, relevant provisions of the Code are reproduced below for ready reference:-
190. Cognizance of offences by Magistrates: (1) All Magistrates of the First Class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court, may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer;
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed which he may try or send to the Court of Session for trial and
(2) A Magistrate taking cognizance under sub-section (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial.
193. Cognizance of offences by Courts of Session:(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under Section 190, sub-section (2).
(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Provincial Government by general or special order may direct them to try or as the Sessions Judge of the division by general or special order may make over-to them for trial.
204. Issue of process: (1) If in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, it shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, it may issue a warrant, or, if it thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Court or if it has no jurisdiction itself some other Court having jurisdiction.
(2) Nothing in this Section shall be deemed to affect the provisions of Section 90.
(3) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid, and if such fees are not paid within a reasonable time, the Court may dismiss the complaint."
11. As per the procedure envisaged in the provisions ibid a Magistrate taking cognizance of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial in terms of Section 190 (2) of the Code and in terms of Section 193(1) of the Code, the Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it in terms of Section 190(2) of the Code. The Court of Session, under these two provisions, can only take cognizance of any offence, exclusively triable by it when it is sent to it by the Magistrate in terms of Section 190(2) of the Code.
12 So far as status of the impugned order is concerned, reference may be made to case law relied upon by learned counsel for the complainant i.e. `Iqbal Hussain Shah v. The State (2012 PCrLJ 848-DB) and case of `Rafiq Ahmad v. Khan Muhammad (2008 PCrLJ 782). As per spirit of the ratio set in the referred cases the Court may recall its own order passed in terms of Section 204 of the Code if it suffers from inherent vice or appear on the face of it erroneous, unjust and without jurisdiction, having regard to the material on record. Reference may also be made to the case of `Muhammad Tufail alias Muhammad Yasin v. Muhammad Suleman and 6 others' (PLD 1995 Lahore 293) and 'Muhammad Jawad Hamid and another v. Mian Muhammad Nawaz Sharif and others' (2019 PCrLJ 665- Lahore). As per the spirit of the referred case law, the status of the order passed in terms of Section 204 of the Code is tentative in nature, not a judgment in terms of Section 369 of the Code and could be reviewed by the Court, seized with the trial of the subject case.
13 The learned counsel for the parties apprised that after passing of the impugned order, the Trial Court has conducted significant proceedings in the subject case. The learned counsel for the petitioner further asserted that in case the Trial Court, on reconsideration, formed its opinion that there are sufficient grounds for proceeding against the petitioner in terms of Section 204 of the Code, the petitioner shall comply with the order in letter and spirit. In these circumstances, it would be just and proper to send the matter back to the Trial Court for decision afresh. Consequently, the instant revision petition is disposed of with direction to the Trial Court to reconsider the matter in accordance with law on the subject by giving due audience to the parties. Copy of this judgment shall be sent to the Trial Court for compliance.