' Through this revision petition, order dated 29-3-1984 passed by Additional Sessions, Judge, Sheikhupura, whereby the petitioner was summoned as an accused to face trial on charges under section 302/109/148/ 149, P. P. C., has been assailed.
2. The circumstances, in brief, are that the petitioner is a very senior functionary of the Ghee Corporation of Pakistan, and holds the Office of the Managing Director, Koh-i-noor Oil Mills Limited, Kala Shah Kaku, District Sheikhupura. Without going into the details, suffice it would be to mention that in the Koh-i-Noor Oil Mills two rival groups of labourers exist. One group is headed by Raja Mukhtar Ahmad who was the General Secretary of the Labour Union, which had through election been declared as Collective Bargaining Agent, while the other group was in opposition. On 4-121982 at about 10.00 a.m. An incident took place outside the mills in which two workers of the said mills were murdered. The incident was reported by Muhammad Siddiq son of Rehmat Ali and on the basis of his statement, a case was registered under section 302/148/149/109, P. P. C. Vide F. I. R. No,
441. The informant also narrated the rivalry of the two groups of labourers and named the petitioner as the main figure behind Raja Mukhtar Ahmad group. While narrating the background, the first informant further stated that the petitioner and Raja Mukhtar Ahmad were responsible for the murder of his brother and on the fateful day Safdar Hussain, Munawar, Shafqat, Sabir and Raja Mukhtar Ahmad armed with carbines alongwith, Muhammad Hafiz and Ghulam Sarwar armed with pistol were, standing on the road, near the gate of the mill. Shafqat allegedly asked the deceased, as to why he had insulted his brother and soon thereafter, Safdar fired at Rafiq deceased on his chest, which was followed by other fire shot by Sabir, which hit Rafiq deceased on his thigh.
Hameed deceased who was taking tea in a shop nearby came forward to intervene. Shafaqat fired at his chest and Hafiz also fired at him. Ghulam Sarwar also fired at Hameed. Raja Mukhtar was alleged to have fired Ansar Khan who survived. It was further stated, that more shots were also fired at the two deceased. The first informant implicated the petitioner, by alleging that the petitioner Hamid Muqeem Bokhari Managing Director, was present near the gate and was exhorting the accused named above to do away with both the deceased.
3. During the investigation of this case by the police, the petitioner, Raja Mukhtar Ahmad, Ghulam Sardar were found innocent and were placed in column No, 2 of the challan. On scrutiny of the case by the prosecution branch, it was opined that the petitioner was innocent and no case had been made out against him. On 8th May, 1983 the Prosecuting Deputy Superintendent of Police recommended to the Superintendent of Police, Sheikhupura that the case against the petitioner should be cancelled. The Superintendent of Police approved the recommendation, and the case was sent back to the Investigating Agency. Accordingly, Investigating Officer carried out the necessary amendment, in the charge-sheet and the challan was submitted in the Court of a Magistrate on 21-3-1983. The learned Magistrate went through the entire case and the material on the record and vide his order dated 25-4-1983 sent up all other accused to face their trial before the Sessions Judge, Sheikhupura. As far as the petitioner was concerned, the learned trial Magistrate observed, that the petitioner had been discharged, as he was found innocent by the Investigating Agency and further, that the petitioner had been falsely implicated.
4. Having been entrusted with the case, the learned Additional Sessions Judge, Sheikhupura summoned all the accused to face their trial. In the meanwhile, the complainant approached the authorities for reinvestigation of the case, and accordingly the case was entrusted to another D. S. P. At Lahore for investigation. On 23-7-1983 yet another application was moved by the complainant, before the learned Additional Sessions Judge, praying that the petitioner though not having been placed in column No, 2 of the charge-sheet be summoned as an accused. Through the same application factum of re-investigation of the case by a D. S. P. At Lahore was also brought into the notice of the learned Additional Sessions Judge. It is important to mention that during the second investigation conducted by D. S. P. At Lahore the petitioners was found innocent.
5. The learned Additional Sessions Judge allowed the aforesaid application moved by the complainant dated 23.7-1983 and the petitioner was summoned as an accused. The learned Additional Sessions Judge while passing the impugned order summoning the petitioner, as an accused person, arrived at the conclusion, that the petitioner's name had been removed from column No, 2 through forgery. The learned Additional Sessions Judge in support of his order, also placed reliance upon the judgments of this Court, holding that the person in column No, 2 could be summoned as an accused at any stage of the trial. The learned Additional Sessions Judge further observed, that the Magistrate had no jurisdiction to cancel the case and to discharge a person accused of the commission of an offence viable exclusively by the Sessions Judge. The learned Additional Sessions Judge further concluded that the case had not been cancelled, because the police had not moved for the cancellation of the case.
6. In this background of the facts, the aforesaid order of the learned Additional Sessions Judge dated 29-3-1984 summoning the petitioner as an accused has been called in question.
7. Mr. Nayeed Rasul Mirza, the learned counsel for the petitioner has raised the following contentions .-
(a) That for the cancellation of a case no formal application in writing is required under law.
(b) That in view of the dictum laid down in the case reported in PLD 1980 Lah. 28 Bashir Ahmad v.
Allaqa Magistrate, Jaranwal and 4 others, the Magistrate had ample jurisdiction to pass an order cancelling the case triable exclusively by the Sessions Judge, reliance was placed on 1983 P Cr. L J 1601 Mehdi Hussain Shah v. Malik Khizar Hayat Khan and another.
(c) That initially the case was on the file of Sessions Judge, Sheikhupura who after having taken cognizance, had summoned all the accused including those in column No, 2 of the charge-sheet.
And therefore, the case was entrusted to the learned Additional Sessions Judge. According to the learned counsel for the petitioner, in the absence of any fresh material coming on the record between the taking of the cognizance by the Sessions Judge, Sheikhupura and the passing of the impugned order, the learned Additional Sessions Judge was not justified to summon the petitioner as an accused.
(d) That the complainant in the circumstances of this case could seek redress of his grievance by way of filing a complaint against the petitioner.
(e) On the other hand the learned counsel for the complainant Mr. Stddiq Chughtai argued that in this case the report under section 173 did indicate that initially the police had arrived at the conclusion, that the petitioner is to be placed in column No, 2 of the charge-sheet and the mere, insertion at the end of the report, that the petitioner was innocent would not absolve the petitioner of his liability, and therefore, the learned Additional Sessions Judge had ample jurisdiction to summon the petitioner as an accused.
(f) The learned counsel further argued, that the Additional Sessions Judge was not bound by the ipsi dixit of the police and could summon the petitioner, or for that matter, any other person involved in the commission of offence under section 190 of the Cr. P. C.
8. The learned counsel for the respondent in support of his contention has also relied upon Muhammad Haneef and another v. The State (1). In this reported case, in the charge-sheet under section 173 Cr. P. C. Some of the accused were placed in column No,
2. The Magistrate who sent the case to the Court of Session for trial, did not summon such persons. The learned Sessions Judge while ta',ing cognizance, also summoned those persons who had been placed in column No,
2. It was urged before this Court, that since the Magistrate, had not summoned those persons mentioned in column No, 2 of the charge-sheet, there is no power with the Sessions Judge to summon those persons. The contention was repelled and rightly so, because there is ample jurisdiction with the trial. Court to summon those named in column No,
2. In my view the ratio of the said case is not applicable to the facts and circumstances B of the present case, because in this case, the petitioner had not been named in column No,
2. To the contrary, the investigating agency found him innocent. The entire confusion has arisen in this case, because of ill drafted report under section 173, Cr. P. C. In the earlier part of the report, no
(1) 1979 P Cr. L J 1078 doubt it is mentioned that the petitioner's name has been included in column No, 2 along with others, but in the end, while narrating the other facts, the author of the report under section 173, Cr.
P. C. Stated that the petitioner was found innocent, and therefore, he was not required by the police nor he was to be sent up before the Magistrate. The attempt with vehemence was made by the learned counsel, appearing for the respondent to make capital out of the contents of the report, and that is why before the learned Additional Sessions Judge, as well as before this Court, it was urged that through forgery the petitioner was exonerated. To satisfy myself I summned the Prosecuting Deputy Superintendent of Police and the Investigating Officer. Both of them categorically denied the allegation of forgery and they stremously supported the conclusion arrived at by them, and exclusion of the name of the petitioner in column No,
2. Both stated, that the case had been investigated, for more than once and the results of such investigation was also the 4ubject of scrutiny and verification by the superior officers. Both these officers vouched for the innocence of the petitioner. To sum up in my view, this was a case in which the petitioner had been found innocent, and therefore the respondent if aggrieved could file a complaint, instead of insisting upon the summoning of the petitioner as an accused on account of confusion in the report submitted under section 173, Cr. P. C. Such report has to be read in its entirety to find out whether the accused persons have been declared innocent or not. I am fortified in this view by the judgment of this Court reported as Pannan v. The State (1). I would further hold, that it was unnecessary for the learned Magistrate, as well, to have passed any order, except to cancel a case with regard to the petitioner, because making any further observation with regard to a person who had been found innocent, by the investigating agency, in my view would be redundant. It was further urged at the bar, that once a case has been cancelled, then the police has no authority to investigate the same, and the only course left open, for the police was to make a prayer for the recall of the order. The reliance in this behalf was placed upon a judgment of this Court reported as Asghar All v. The State (2).
9. Various other judgments were cited by the learned counsel appearing for respondent, to the effect that a person named in column No, 2 could be summoned as an accused person. There is no cavil with this preposition. In my view, the fate of this cite hinges upon the connotation of the order cancelling the case and the jurisdiction with the Magistrate to do so and also its legal implications. Such has been the subject-matter of determination by a Full Bench of this Court, and this Court vide its judgment Wazir v. The State (3) laid down the following dictum:- "2. We were told by learned counsel for the respondent that the cancellation could not be under subsection (3) of section 173 and that apart from that subsection there was no other provision which enabled a Magistrate to cancel a case. Subsection (3), he argued was applicable to a case where the accused had been released on his bond under section 169, which provides that if it appears to the police officer that there is not sufficient evidence to justify the forwarding of the case to a Magistrate, such officer shall release the accused on a bond requiring him to appear before a Magistrate empowered to take cognizance of the offence and to try the accused or to commit him for trial. If this argument is accepted, then,
(1) 1983 P Cr. L J 2374 (2) 1983 P Cr. L J 2187
(3) PLD 1962 Lab, 405 in the event of omission by the police officer to release the accused on a: bond, the Magistrate will not be empowered to discharge the accused or to cancel the case even if the police officer had reported that there was no sufficient evidence against the accused. We think that such power is inherent in section 173 read with section 190 of the Code of Criminal Procedure, though the language of subsection (3) does not directly apply to the case."
10. Respectfully placing reliance upon the above-quoted dictum, I am of the view that the order of the Magistrate in the circumstances of the case amounted to the cancellation of the case. This is only inference which can be drawn from the order passed by the learned Magistrate. I am conscious of the facts that the Magistrate has not specifically used the terminology such as cancellation, but this is irresistible conclusion which follows from the perusal of the order.
11.The contention of the learned counsel for the respondent, that the Magistrate had no jurisdiction to pass such order because the case was exclusively triable by the Sessions Judge has no merits because vide judgment of this Court Mehdi Hussain Shah v. Malik Khizar Hayat Khan (1). Such contention has been repelled and it was held that a Magistrate was not merely a post office and could pass such order, in cases which he E had to sent up to the Court of Session for holding the trial. The learned Advocate-General Punjab Mr. Rashad Aziz also argued that the issue was being confused on the hypothesis that the petitioner's name had been placed in column No, 2 which has no foundation. According to the learned Advocate-General, the Court of Session has ample power to summon a person named in column No, 2 in the report submitted under section 173, Cr. P. C. The learned Advocate General also submitted, that even otherwise no material had been brought on the record between the taking of the cognizance by the learned Sessions Judge and the passing of the impugned order by the learned Additional Sessions Judge, so as to justify the summoning of the petitioner. I find force in this contention. In my view, the respondent, if at all, aggrieved could have resort to the filing of private complaint against the petitioner. I am fortified in my view by the judgment of this Court reported as Bashir Ahmad v, Allaqa Magistrate Jaranwala and 4 others (2).
12. Upshot of the above discussion is that, in the circumstances of the present case, once the case had been cancelled, then there was no G jurisdiction left with the Additional Sessions Judge to summon the petitioner as an accused, without any material on the record.
13.In this view of the matter, I would accept this revision petition and set aside the judgment dated 29-3-1984 delivered by the learned Additional Sessions Judge, Sheikhupura, whereby the petitioner was summoned as an accused person.
(1) 1983 P Cr, L J 1601 (2) PLD 1980 Lah. 28