' Facts necessary for decision of this petition are stated below: ' A case vide F.I.R. No,199 dated 27-5-1986 was registered at Police Station Naulakha, Lahore under section 302/34 P P C at the instance of Pir Zahid Hassan against Hamayun Khan, Zahid Khalil, Inam Elahi and Idrees. It was alleged therein that they while armed with fire-arms murdered Mehmood Ali, Babu Din and Bashir Ahmad on account of business rivalry. The police after registration of the case undertook investigation whereafter challan under section 302/34, P.P.C. Was filed only against Hamayun Khan, Inam Elahi, and Idrees accused in December 1986. The Investigating Officer came to the conclusion that Zahid Khalil accused (present petitioner) was innocent and as such, his name was not mentioned in any column of the challan.
' On 21-12-1986, Wajid Ali, an eye-witness named in the F.I.R. Dissatisfied with the investigation, filed a complaint reasserting the facts stated in the F.I.R. He examined Mahmood Ali P.W.1, an injured eye-witness, Pir Zahid Hussain P.W.2, Dr. Khalid Aziz P.W.3 and Dr. Abid Karim P.W.4 besides appearing himself as witness during preliminary enquiry. The learned Additional Sessions Judge, Lahore vide impugned order dated 31-10-1987, on the basis of the evidence recorded during preliminary enquiry, came to the conclusion that a prima facie case under section 302/307/34, P.P.C. Was made out against all the four accused including Zahid Khalil. He issued non-bailable warrants to procure presence of Zahid Khalil accused-petitioner. Hence this petition.
2. In support of this petition, it is contended on behalf of the petitioner firstly, that the learned Additional Sessions Judge did not summon or examine the case diaries recorded by different Investigating Officers before summoning the accused in the complaint and as such, the impugned order was illegal; secondly, that the complaint was filed on 21-12-1986 but the statement of complainant under section 200, Cr.P.C. Was recorded on 25-1-1987 which makes all subsequent proceedings illegal; and thirdly, that there was no sufficient material on record of the complaint case to justify summoning of Zahid Khalil petitioner as an accused. The learned counsel contended that Zahid Khalil was sick. He was not present at the spot at the time of occurrence and he produced evidence in support of his plea of alibi before the Investigating Officer which should have been considered by the lower Court before summoning him as an accused in this case. The learned counsel placed reliance on the judgment in Muhammad Ibrahim and others v. Qudrat Ullah Ruddy PLD 1986 Lah. 256 in support of his contentions. The learned counsel for the complainant controverted various contentions on behalf of the petitioner.
3. I have carefully examined the respective contentions on behalf of the parties. It was not denied before me that Zahid Khalil accused-petitioner having not been challenged by police, the only remedy available to the complainant was by way of a private complaint. The learned counsel mainly argued that the learned Additional Sessions Judge should have examined the evidence regarding alibi of Zahid Khalil recorded by the Investigating Officer before issuing process against him under section 302/307/34, P.P.C. In my view, this argument was without any merits. The impugned order, dated 31-10-1987, by which the accused were summoned to face trial, was recorded on the basis of preliminary evidence recorded during enquiry. Mahmood Ali P.W.1 was an injured eye-witness. Pir Zahid Hussain P.W.2 and Wajid Ali complainant were eye-witnesses of the occurrence. The medical evidence was furnished by Dr. Khalid Aziz P.W.3 and Dr. Abid Karim P.W.4.
This evidence provided sufficient material to justify a conclusion by learned Additional Sessions Judge that prima facie a case under section 302/307/34, P.P.C. Was made out against all the four accused. I have gone through the cited judgment which is not applicable to facts of this case. The facts of the case in the cited judgment were that the accused were facing trial in a case under section 302/307/148/149, P.P.C. The trial commenced in the Court of Additional Sessions Judge, Kasur who started recording the statement of Qudrat Ullah Ruddy on 18-2-1986. The statement was still in progress during trial when the learned trial Magistrate decided to summon accused who were not initially present before him. The order of summoning of the accused was challenged in the High Court through a revision which was allowed. On the other hand, the impugned order was, not passed during recording of evidence in a trial but in a private complaint after recording of the preliminary evidence. It is correct that the learned Judge while recording the cited judgment made certain observations regarding the mode of enquiry in a private complaint as well but with respect I am not inclined to agree with those observations.
It is correct that the lower Court should have recorded the statement of the complaint under section 200, Cr.P.C. Immediately on receipt of the complaint but this omission is only an irregularity which does not affect merits of the case. It was not an illegality and only curable irregularity. The learned counsel was not able to say as to how the petitioner Zahid Khalil was prejudiced due to the said irregularity.
' I am not inclined to agree with the learned counsel that there was not sufficient evidence to summon the petitioner alongwith other accused to face trial, As stated above, three eye-witnesses including an injured eye-witness were examined during preliminary enquiry besides the medical evidence. It was not necessary for the lower Court to examine the police file before issuing process to secure presence of the petitioner. The petitioner can, if so advised, produce his evidence in defence during trial.
4. In view of the above discussion, I find no merits in this petition which is accordingly dismissed.
' Any observation on facts in this order will have no bearing on merits of the case during trial.
5. The learned Additional Sessions Judge issued non-boilable warrants of arrest to secure presence of Zahid Khalil accused-petitioner. He applied for his bail in the said complaint which was allowed by this Court. I have been informed that the said bail and surety bonds were cancelled because Zahid Khalil failed to appear in Court. I direct that Zahid Khalil petitioner should file fresh bail bond in the sum of Rs,50,000 with two sureties each in like amount to the satisfaction of the learned trial Court within 15 days failing which he shall be taken in custody.