' This is a revision application under section 435/439, Cr.P.C. Assailing the validity of the order passed by the learned Vth Additional Sessions Judge, Larkana in Sessions Case No,582 of 1986 allowing the application under section 193, Cr.P.C. Filed by the complainant thereby issuing process against the applicant. He has also at the same time ordered that the applicant shall furnish surety in the sum of Rs,25,000 for his appearance in Court on the next date of hearing as it appears from the record that he is a member of Sind Provincial Assembly and a heart patient.
2. The facts of the case briefly stated, are that on 27th June, 1986 at 18.30 hours. Ghulam Sarwar lodged a complainat at Town Police Station, Larkana for the offence under section 302/307/148/149, P.P.C. And 13-D Arms Ordinance in respect of murder of Illahi Bux Siyal and Arbab Siyal and the injuries sustained by Imtiaz Siyal by accused Haji Ghulam Unar, Haji Altaf Hussain, Madoo alias Madad All and Illahi Bux alias Dada Unar. Later on, injured Moharram also died in the hospital. The police investigated the case and sent up accused Bakhoo Babar under an interim charge-sheet on 13th September, 1986, before the Resident Magistrate, Larkana, whereas the names of four co- accused namely, Ghulam Hussain Unar (applicant), Haji Altaf Hussain, Illahi Bux alias Dada Unar and Madoo were shown in column No,2 thereof. On 21st September, 1986 the complainant filed an application under section 193, Cr.P.C. Before the Vth Additional Sessions Judge, Larkana. On 30th September, 1986 he also filed an application to the I.-G. Police requesting therein for transfer of investigation of the said case to some other Agency. It was, therefore, entrusted for investigation to Crime Branch, Sukkur. The final challan was submitted on 11th December, 1986 by Crime Branch wherein the accused Allah Bux and Haji Altaf Hussain had been placed in column No,3 (on hail).
The accused Madad Ali was stated to have absconded. The accused Bukhoo Babar was in custody.
The accused Haji Ghulam Hussain, applicant was, however, again placed in column No,2.
3. The learned Vth Additional Sessions Judge, Larkana, however, passed the impugned order, dated 6-2-1989 on the application of the complainant in the manner indicated above. Has filed this revision application praying for setting aside the impugned order passed by the learned Vth Additional Sessions Judge.
5. Mr. M.I. Memon, learned counsel for the applicant although conceded that the learned Vth Additional Sessions Judge was possessed of the jurisdiction to pass the impugned order yet according to him, he has failed to give due consideration to the relevant facts and circumstances of the case in issuing the process against him (the applicant). He submitted that the application presented by the complainant before the learned Additional Sessions Judge was not based on any material and since the two investigating agencies having recorded and considered the evidence of the witnesses produced by the applicant on the plea of alibi, reached the conclusion that he was falsely involved and hence his name was justly placed in column No,2 in the challan. It was, therefore, Mr. Memon so urged, a fit case wherein the application under section 193, Cr.P.C. Should have been rejected. He also submitted that the statements of witnesses produced by the applicant at the investigation stage was not taken into consideration by the learned trial Court, and hence it is a fit case for setting aside the impugned order or at least for remand to the learned trial Court for reconsideration.
6. Mr. Abdul Waheed Katpar, learned counsel for the complainant has also been heard. He vehemently opposed the present application and placing reliance on the decision of Muhammad Ayoob v. The State and another 1983 PCr.LJ 1337 urged that the Court has power to summon an accused shown in column No,2 in the challan. In that case, too the counsel for the parties had conceded, like the case in hand, that the Sessions Judge had the power to summon a person shown in column No,2 mentioned in the challan, exclusively triable by the said Court. Mr. Abdul Waheed Katpar further submitted that as a matter of fact, the prima facie, involvement of the applicant in the commission of offence has been rightly held by the trial Court in his impugned order and that no exception can be taken to it particularly when the counsel for the applicant has also conceded that the Court had the jurisdiction to issue process against the applicant. He further invited my attention to the following authorities:--
(1) Ali Murad v. State 1988 PCr.LI 265.
7. In this case Abdul Razzak Thahirn, J., inter alia, observed that where on the basis of the evidence of witnesses a prima facie case is made out against an accused the process may be issued against him despite his name having been shown in column No,2 in the challan.
(2) Qurban Ali v. State and two others 1982 PCr.L.1 52.
8. The point for consideration before the Court in this case was as to whether the accused whose name was shown in column No,2 and who was not reported under section 173, Cr.P.C. Could have been joined as co-accused by the Sessions Court in exercise of the powers vested in him under section 190(3), Cr.P.C. A learned Single Judge of this Court, after extensively referring to the case- law as then existed, held that under section 190(3), Cr.P.C., as it stands after amendment made by Law Reforms Ordinance, 1972, the Court of Session under section 193(1) can, in cases exclusively triable by it, issue process against an accused who may appear to be involved in the commission of offence irrespective of the fact that he was declared innocent by police and shown in column No,2 in the challan.
9. Mr. A.I. Qarni, learned counsel for the State also opposed this application and supported the impugned order of the learned Additional Sessions Judge. In his submission, it is for the Court to decide with regard to the involvement or otherwise of accused in the commission of offence even at a preliminary stage. In his submission the mere fact that the investigating agency has put him in column No,2 in the challan would not come in the way of the Sessions Judge to exercise the power vested in him under section 193(1), Cr.P.C.
10. I have given my earnest consideration to the facts and circumstances of the case as well as to the submissions made by the learned counsel for the parties and I do not feel inclined to hold that there is any merit in this application. The learned Additional Sessions Judge vide his impugned orders has, I find, given cogent reasons for reaching the conclusion that, prima facie, the involvement of the accused/applicant abovenamed in the commission of offence cannot be overruled. He has rightly observed that the plea of alibi will be decided by the Court in due course.
Presently the complainant in the F.I.R. Has assigned specific role of firing at deceased and that his version has been supported by witnesses in their section 161 as well as section 164, Cr.P.C.
Statements and hence there is a strong prima facie case against the applicant. There is abundance of reported law on the point that once the case is sent up to the Sessions Judge and for that matter the Additional Sessions Judge as well, he is, from that stage onwards, fully seized of the matter and is fully competent to order the issuance of process against a person, if on the basis of the statements recorded by the investigating officer and/or the Magistrate, there are reasons to believe that he is also involved in the commission of offence and that it was not proper on the part of the police to put him in column No,2. The impugned order has been admittedly passed by the learned Additional Sessions Judge after the case had been sent to him. It may be further observed here that under section 190(3), Cr.P.C. It is the case which is sent up to the Sessions Judge and not the accused. Here also a reference may be made to the following observations made by B.G.N.
Kazi, J., in the case of Qurban Ali (supra), with which T am in complete agreement:- "When the Court becomes seized of the case relating to criminal transactions it becomes seized of the entire case. In other words, the Court obtains jurisdiction of persons involved in the transaction.
The cognizance of the Court extends not only to the person against whom the challan is submitted but to other persons who might be implicated therein."
11. In the result, the application fails and is hereby dismissed.