1. ' Relevant facts briefly stated are that towards 9-4-1986 Abdul Latif Chowkidar filed a complaint before the Assistant Commissioner Hub alleging dishonest removal of scrap of ship LUCY belonging to Sardar Ahmed Shah Khetran from Plot No,6 Gaddani by petitioner in connivance with Abdur Rashid and Abdul Aziz of United Steels. The said complaint was forwarded to Tehsildar for enquiry under section 202, Cr.P.C. Tehsildar Hub after necessary investigation submitted his report on 8-4-1989 indicating that allegation of theft was not made out against petitioner. He therefore, recommended to drop proceedings against petitioner within the purview of section 169, Cr.P.C.
2. However, challan was put up against Abdul Rashid and Abdul Aziz. Record further reveals that Assistant Commissioner acting on the above report while taking cognizance in the matter, sent up merely above mentioned accused before Additional Sessions Judge, Lasbella for facing trial under section 9/14, Offences Against Property (Enforcement of Hadd) Ordinance, 1979. Later the Distinct Attorney submitted an application praying for recalling petitioner as accused in the case. Learned Additional Sessions Judge accepted said request of Assistant District Attorney and passed following order on 20-2-1990:-- "Accused Rashid and Aziz are present alongwith their counsel. A.D.A. Is also present. Arguments heard. Record shows that there is sufficient evidence against accused Akhtar Sher therefore, learned Magistrate wrongly has discharged the accused from the alleged offence. Even otherwise present case has been challaned by the Investigation Officer under section 9/14, Hudood Ordinance. At this score learned Magistrate was not empowered to take the cognizance of case and pass such an order. Thus order of discharge is recalled and accused is summoned. To come up on 20-3-1990 for further proceedings."
3. Present petition for quashment under section 561-A, Cr.P.C. Is now directed against above order. At the outset, question arose whether petition for quashment is maintainable before High Court in respect of offence covered by Hudood Ordinances. This legal position has been completely answered in (i) Liaqat Ali v. State PLD 1989 Karachi 481 and (ii) Haji Muhammad Aslam Khan v.
4. Muhammad Aslam and another 1990 SCMR 211. However, relevant observations from aforequoted Supreme Court judgment are reproduced below:-- "We have carefully considered this argument of the learned counsel. So far as the facts of this case are concerned there is no need to give a finding on this legal point. The words 'criminal assaults' were used in a habeas corpus petition by respondent No,1 and in the narration of facts it was evident that these intended to mean physical torture and not Zina as had been interpreted by the petitioner. It was in the light of these facts that the proceedings pending against respondent No,1 were ordered to be quashed. As for Article 203-DD of the Constitution, it deals with the revisional powers of the Federal Shariat Court in Hudood cases but evidently does not bar the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Pending against any one in a Court of Criminal jurisdiction. Since this is the position no case is made out for interference. The petition is accordingly dismissed."
5. ' As regards merits, it may be seen that on the basis of final report, petitioner was not sent up to face trial before Session Court. In the circumstances it has to be seen whether without recording evidence, learned Session Judge had the jurisdiction to summon petitioner for facing prosecution, specially when Session Court does not have jurisdiction in view of mandatory provisions of sections 190(3) and 193(1), Cr.P.C. As held in case Doran Khan v. State PLD 1985 Quetta 188. Apparently without commencement of trial or recording evidence, Sessions Court has no jurisdiction to summon accused mentioned in Col. No,2 or against whom evidence is found deficient during enquiry or investigation. This view finds support from the observation in case Muhammad Ibrahim and others v. Qudratullah Ruddy and others PLD 1986 Lahore 256. Relevant portion is reproduced below:-- "10. In the face of the amendments made in 1972, the question that arises is whether a Court of Session can summon an accused, who has been earlier discharged, if during the course of trial, it finds material against him showing his involvement in any of the offences imputed to him and if so, on what material or evidence. The answer is obviously in the affirmative. The proceedings under Chapter XVI, are not higher than those under Chapter XXII-A. If in proceedings under Chapter XXII- A, the Court of Session considers, on the basis of evidence recorded, that there are sufficient grounds for proceeding against a person who is discharged, it should have the right to summon him. How much evidence should be recorded would depend upon the facts of each case. No hard and fast rule can be laid down in this respect. Since in proceedings under Chapter XVI, the complainant's witnesses are not liable for cross-examination and the accused need not produce his defence, a Court of Session, when starting a trial, may feel tempted, in order to determine whether an accused discharged by a Magistrate should be summoned, to first frame a charge against the accused named in column No,3 and perhaps also those named in Column No,2 (who have not been discharged by the Magistrate) and record the examination-in-chief of a number of witnesses, reserving their cross-examination to a future date, and then, finding sufficient grounds, to summon the accused who have been discharged, but this procedure would be highly irregular, if not illegal. On principle, once the Court of Session has started a trial, it must record evidence as in a trial and not adopt a procedure akin to an inquiry. Any tendency to adopt the procedure of an inquiry would be fraught with danger, as it would induce the Court to record minimal evidence, which it would not otherwise do, if it were holding a proper inquiry itself and, worst of all, it would induce complainants in future not to file private complaints, but to take advantage of such summary procedure provided by the trial Court. The advantage and protection gained by an accused who has been discharged, after leading convincing evidence before the police during investigation, should be given the respect it deserves and should not be allowed to be lightly disturbed:-
11. In the instant case, the learned Additional Sessions Judge had hardly allowed the examination- in-chief of Qudrat Ullah Ruddy P.W. 1 to be completed when he accepted the prayer of the Public Prosecutor to summon the petitioners and nine others to face their trial. One would imagine that he would have allowed his examination-in-chief and cross-examination to be completed and also examined some further witnesses. The evidence of a witness at the trial without his cross- examination is no evidence. See Yahya Bakhtiar v. The State. The learned Additional Sessions Judge appears to have acted rather hastily in relying upon evidence which was legally no evidence and his order of 18-2-1986 summoning the petitioners and others to face their trial deserves to be set aside."
6. Respectfully following the dictum in aforequoted report, it is quite obvious, that impugned direction of learned Additional Sessions Judge, Lasbella for summoning petitioner was rather hasty and in exercise of powers otherwise not vested in him at that stage. No doubt if during trial, reasonable material is brought on record, Court has plenary jurisdiction to summon the petitioner. Since impugned direction at the preliminary stage is clearly devoid of lawful authority and tantamounts to abuse of the process of Court, consequently, I am inclined to accept the petition and direct quashment of order dated 20-2-1989 passed by learned Additional Sessions Judge, Lasbella.