On 19-3-1989, a case under section 302/34 of the P.P.C. For the murder of Falak Sher was registered at Police Station Noor Shah on the report of Allah Ditta, petitioner, against Manzoor, respondent No.2; and three others, namely, Murad, Sarfraz and Muhammad Anwar. During the investigation, Manzoor, respondent No.2 was found innocent and was got discharged by the police However, his name was placed in Column No.2 of the Challan and the case was sent up by the 11aqa Magistrate to the Court of Sessions for trial. The learned Sessions Judge, Sahiwal, entrusted the case to the learned Additional Sessions Judge, Sahiwal. Before the trial could commence, the pet enterer/complainant filed an application before the learned Additional Sessions Judge, Sahiwal.
For summoning Manzoor as an accused. Vide the impugned order, dated 4-6-191)(1. The learned Additional Sessions Judge refused to summon the accused at that stage for the reasons that according to the report under section 173 of the Cr.P.C., the accused is innocent and he was not present at the spot and is `t discharged by the Ilaqa Magistrate. Prima facie, only Lalkara is attributed to his and even, according to the investigating agency, the accused was not present for this purpose. Hence,, this revision.
2. The learned counsel for the petitioner contended that despite an order of discharge by a Magistrate in his favour, Manzoor accused/respondent No.2 could be summoned to stand trial at any stage of the case. The learned counsel for respondent No.2 has supported the order of the learned Additional Sessions Judge. The learned counsel,, for the State and the learned Additional Advocate-- General have not opposed this petition.
3. I have considered the matter carefully. There can be no two opinions that since the name of Manzoor, respondent No.2, was placed in Column No.2 of the Challan, therefore, the learned Additional Sessions Judge was fully authorised to summon or refuse to summon him on the basis of negative report under section 173 of the Cr.P.C., at any stage of the case, although he had earlier been discharged by the Ilaqa Magistrate. The real question for consideration and determination, in this case, is that as to whether or not the reasons given by the learned Additional Sessions Judge for refusing to summon respondent No.2 are tenable m law. An examination of the impugned order will show that the learned Additional Sessions Judge has acted solely on the opinion of the police. It seems to me that instead of acting upon the opinion of the police with regard to the innocence or presence of the accused at the time of occurrence, he should have considered the F.I.R., statements made by the eye-witnesses under section 161 of the Cr.P.C., the plea raised by Manzoor accused during the investigation and the evidence produced by him in defence and the opinion of the police.
4. Pursuant to the above discussion, the impugned order is set aside and the case is sent back to the learned Additional Sessions Judge, Sahiwal, with the direction that he will decide the application of the petitioner for summoning Manzoor, respondent No.2, as an accused afresh after perusing the F.I.R., the statements made by the eye-witnesses under section 161 of the Cr.P.C., the defence evidence adduced by Manzoor, respondent No.2, during the investigation and the police opinion with regard to his innocence.