' Rao Habib Ahmad, petitioner herein, has filed this revision praying that the order of learned Additional Sessions Judge, dated 9-4-1988, summoning the petitioner as an accused through non- bailable warrants of arrest to face trial in a murder case be set aside as being illegal and improper.
2. Relevant facts briefly are that Muhammad Yar (complainant) got registered F.I.R. No,414/87 at Police Station Qabula, district Sahiwal, on 17-121987 against Rao Habib Ahmad (petitioner) and seven others alleging that they formed an unlawful assembly and in prosecution of the common object of that assembly they caused the murder of Mansha and Bagh Ali. The role attributed to Rao Habib Ahmad (petitioner) was that he fired at Mansha (deceased) hitting his left hand. During investigation the petitioner was found to be innocent, therefore, he was shown in Column No,2 of incomplete challan submitted in Court by Nazir Ahmad S.H.O. On 6-1-1988. The case was further investigated and a complete challan under section 173, Cr.P.C., was submitted by the same S.H.O.
On 20-11988 saying that since Rao Habib Ahmad (petitioner) had been found to be innocent, therefore, justice demands that his name be deleted from column No,2. It may be mentioned that the police had not arrested the petitioner in the case. The Illaqa Magistrate sent both the challans to the Court of Sessions under section 190(3), Cr.P.C. Feeling dissatisfied with the police investigation, Muhammad Yar (complainant) filed a private complaint against all the eight accused including the petitioner on 1-2-1988. This complaint was also sent to Sessions Court.
However, it was withdrawn by the complainant by making a statement on 15-3-1988. On 24-3-1988, he applied to the trial Court praying that Rao Habib Ahmad (petitioner) who has been shown in Column No,2 of the challan be summoned as accused because the prosecution witnesses in their statements recorded under section 161, Cr.P.C., implicated him as accused in the case. This application seems to have been forwarded by Mr. Saeed Akhtar, Deputy District Attorney, with his endorsement, dated 27-3-1988, to the effect that the petitioner was named in the F.I.R. As well as in the statements under section 161, Cr.P.C., and that he had been attributed fire-arm injury to Mansha (deceased), therefore, he be summoned. Learned Additional Sessions Judge on this application passed the impugned order on 9-4-1988 in the following words: {{URDU TEXT}} ' Feeling aggrieved of this order the instant revision has been filed.
3. Learned counsel appearing on behalf of the petitioner submitted that the impugned order has been passed in a mechanical manner without applying conscious mind to the facts of the case as is manifest from the fact that the impugned order almost contains the language which is used by the Deputy District Attorney in his forwarding note made on complainant's application, therefore, the same is liable to be set aside. He cited Mirza Muhammad Abbas's case PLD 1964 Lah.
7. Further contended that learned Additional Sessions Judge erred to have passed the impugned order for it did not notice final report, dated 20-1-1988, submitted by the S.H.O. Deleting name of the petitioner from Column No,2. Learned counsel for complainant/respondent replied that even if the name of the petitioner was not placed in Column No,2 or 3 of the challan yet the Court can summon the petitioner to face trial as accused of course, if in its opinion he is concerned in commission of the crime. He cited Supreme Court judgment in Raja Khush Bakhtur Rahman's case NLR 1985 Criminal 1.
4. I have considered the contentions of learned counsel for the parties in the light of relevant provisions of law and the case-law cited at the bar.
5. It is true that Nazir Ahmad, S.H.O. In his report, dated 6-1-1988 placed petitioner's name in column No,2 of the challan and in the subsequent report, dated 20-1-1988 he did not mention his name in column No,2 or 3 of the challan. Both reports were before learned Additional Sessions Judge when he passed the impugned order. The subsequent report, to my mind, did not have the effect of deleting the name of the petitioner from column No,2 in the earlier report. Both the reports contained opinion of the Investigating Officer which are not binding on the Court. Finding/opinion of the Investigating Officer as to the guilt or innocence of an accused is always subject to judicial scrutiny by a Court. If the opinion of the Investigating Officer as to the innocence of an accused is accepted on its face-value then it would tantamount to giving the police power of acquitting an accused from the charge which is inconceivable. A Court takes cognizance of the case and not merely of the accused challancd. The Supreme Court of Pakistan in Raja Khush Bakhtur Rahman's case observed that the Court 'takes cognizance of the case as a whole and not qua only some of the accused found by the police to be implicated in the case and that 'the Court acquires jurisdiction over all the persons involved and not only over persons against whom the challan is submitted'. As for the case in hand, learned Additional Sessions Judge, in the impugned order observed that according to the F.I.R. And statements of eyewitnesses, the petitioner (placed in column No,2) was present on the spot, he was armed with a gun and he fired a shot at Mansha (deceased) hitting his hand. These observations are in accord with the record. It cannot, therefore, be said that the impugned order was passed by the Court without applying mind, merely because the same facts have been highlighted by the Deputy District Attorney in his note made on complainant's application Mirza Muhammad Abbas's case PLD 1964 Lah. 7 does not cover this case at all. In that case, learned Judge had observed:- "The question for consideration is whether in taking action the learned Magistrate acted merely on the request made by the P.S.I. Or he passed orders of the summoning of the accused-petitioner after weighing the evidence against him. In the latter case the order would be a proper judicial order and not liable to be interfered with by this Court."
' To my mind, the case in hand falls in the second category referred to in the above observation.
7. For what has gone above, I am of the view that the impugned order is perfectly legal and calls for no interference. However, in the circumstances of the case, the petitioner is entitled to the grant of bail. He shall remain on bail during pendency of the trial subject to his furnishing bonds in the sum of Rs,25,000 with one surety in the like amount to the satisfaction of the trial Court. He shall appear before the trial Court on the next date of hearing. The petition stands disposed of accordingly. .