The facts giving rise to this petition are as under On the 9th of October, 1977 a case under sections 302 and 307 read with section 34 of the Pakistan Penal Code was registered against Muhammad Aslam and Muhammad Muslim respondents. Both the accused were alleged to have fired one shot each on Muhammad Yaqub deceased as a result of which he died. Muhammad Aslam accused was further alleged to have fired at Maula Bakhsh.
After the investigation, Muhammad Muslim respondent was shown in column No. 2 of the challan.
On 13th August, 1978 both the accused appeared before the Magistrate First Class, Rawalpindi. He passed an order that the file be sent to the Sessions Court and directed the accused persons to appear in the said Court on 23rd August 1978. Both the accused appeared before the--learned Sessions Judge on that date It appears that later on the case was sent to the Additional Sessions Judge for trial. On 3rd May, 1979 both the accused appeared before him; copies of statements of P.
Ws. Were supplied to them and the case was fixed for hearing on 19th July, 1979. On that date Muhammad Aslam accused alone was charged ; his plea was recorded ; statements of some of the prosecution witnesses were also recorded and the case was then adjourned to 21st July 1979 when the counsel for the complainant, after examination-in-chief of the complainant, moved an application that Muhammad Muslim accused may also be summoned and .Tried along with his co-accused. The request was declined by order of even date which reads as under:- ---After the examination-in-chief of Muhammad Ayub complainant, the learned complainant's counsel has submitted an application for summoning Muhammad Muslim for trial in this case. It is contended by the learned counsel for the complainant that Muhammad Muslim was placed in column No. 2 of the challan, but now the sufficient material has come on the file for summoning him and trying him as an accused in this case. The learned Special Assistant Public Prosecutor does not support this application and contends that Muhammad Muslim was found innocent during the entire investigations, which were conducted by the High Police Officials and was even found to be inno--cent in investigations conducted by Azmat Malik Superintendent Police.--- The trial in this case has already commenced, Muhammaed Aslam ac--cused was alone charged after perusal of police report and other necessary documents and statements filed by the prosecution as pro--vided in section 265-D, Cr. P. C. The learned counsel for the com--plainant has not been able to refer to me any provision of Cr. P. C. Where after commencement of trial another person can be summoned for trial. In view of the said legal position, I do not feel the necessity to summon and charge Muhammad Muslim in this case as an accused and the application is hereby dismissed. The trial of this case will proceed accordingly.
The complainant has questioned the correctness and propriety of the above order through this revision petition.
2. The learned counsel for both the parties conceded that the Sessions Court has the power to summon a person shown in column No. 2 of the challan as an accused in a case exclusively triable by such Court. The learned counsel for the petitioner, however, contended that once the Sessions Court had taken cognizance of the case and supplied copies of the prosecution witnesses to the accused, it should have either framed a charge against him or acquitted him in terms of section 265-K, Cr. P. C.. But none of these courses was adopted. He submitted that in view of the material on the record, there was no justification whatsoever for not framing charge against Muhammad Muslim respondent.
The learned counsel for the respondent, o. The other hand, contended that although no formal order in writing was passed by the learned Additional Sessions Judge for not framing the charge against, respondent No. 2, yet the impugned order clearly shows that Muhammad Aslam accused alone was charged by the learned trial Judge after he had gone through the police report and other necessary documents, which impliedly means that he had agreed with the police report and consequently declined to summon the respondent. It was further submitted that the impugned order does not suffer from any jurisdictional error or illegality patent on the face of the record, therefore, no interference on the revisional side is called for.
3. I have given my careful consideration to the arguments addressed by the learned counsel for the parties. Perusal of the impugned order shows that the main reason which weighed with the learned Additional Sessions Judge for rejecting the application of the complainant for summoning the respondent as an accused, was that the counsel for the complainant had not been able to refer to any provision of Cr. P. C. Where after commence--ment of trial another person can be summoned for trial." The learned trial Judge thus proceeded on an erroneous assumption that he had no power to summon a person as an accused. The Sessions Court has the power to summon a person shown in column No. 2 of the challan in a case exclusively triable by such Court. In Muhammad Ishaq v. The State (1979 P Cr. L J Note 96 at p. 63) it was held that "on receiving a case from the Magistrate the Court of Session under section 193 (1) of the Cr. P. Code is seized of the entire case and can summon any person as an accused who might appear to be concerned with the commission of offence irrespective of the fact that be was declared innocent by the police and shown in column No. 2 of the challan". This view was affirmed by a Division Bench of this Court in Muhammad Hanif v. The State (1979 P Cr. L J 1078).
For the foregoing reasons, this petition is allowed and the impugned order. Is set aside. The learned trial Judge is directed to pass fresh order on the application after hearing the parties.