' Zahid Anwar Wahla has filed this petition under section 439, Cr.P.C. Against the order passed by the learned Additional Sessions Judge, Vehari, dated 8-9-1991 allowing the application of Muhammad Amin complainant/respondent and summoning him as an accused in case FIR.
No,292 registered under section 302/307/34, P.P.C.
2. The brief facts giving rise to this revision petition are that the petitioner Zahid Anwar Wahla, Muhammad Aslam, Muhammad Sharif and Muhammad Amin were reported against by Muhammad Amin, complainant at Police Station Sadar Vehari on 6-7-1989 to have committed the murder of his son Muhammad Imran earlier at 2-30 p.m. On the same day in the Chiragah land within the area of Chak No,657/EB, District Vehari. All the aforesaid four accused were stated to be armed with fire-arms. Muhammad Alam, Muhammad Sharif and Muhammad Amin were attributed ineffective firing while Anwar Zahid petitioner was attributed the only fire-arm injury found on the head of Muhammad Imran which proved fatal. During the investigation of the case the petitioner named in the F.I.R. As the principal accused was found innocent by the police and accepting his plea of alibi he was discharged by the Ilaqa Magistrate. The remaining three accused were, however, sent by the Ilaqa Magistrate to face the trial for offence under section 302/307 read with section 34, P.P.C. Muhammad Amin complainant/respondent filed Writ Petition No,1145 of 1987 in this Court challenging the non-challaning of the petitioner by the police in the case. However, the writ petition was dismissed vide order, dated 12-1-1988 with the observation that the respondent if so advised and felt aggrieved could avail alternate remedy of lodging a private complaint.
3. The respondent Muhammad Amin did not file the private complaint but he moved an application before the learned Additional Sessions Judge, Vehari for summoning the petitioner as an accused. This application was resisted by the petitioner and the learned trial Court after hearing arguments of the parties vide its order, dated 11-2-1990 dismissed the application of the complainant holding that the petitioner could not be summoned in the case as an accused. After that the trial in the challan case commenced in the Court and the statements of six P.Ws. Were recorded including the draftsman, the police officials and the doctor when Muhammad Amin respondent appeared as P.W.7. When his examination-in-chief was recorded he implicated Anwar Zahid Wahla petitioner as the main accused having caused the only fatal injury to the deceased so he moved again an application at this stage for summoning him as an accused person on the ground that sufficient material had existed now against him on the file. The copies of all the statements have been attached with this petition marked as Annexures `E' to 'F'. Again this application was resisted by the petitioner and after having heard the arguments at length by both sides the learned trial Court vide its order, dated 8-9-1991 allowed the application of the respondent and summoned the petitioner as an accused in the case.
4. Sardar Muhammad Latif Khan Khosa, Advocate the learned counsel appearing on behalf of the petitioner contended that on the motion of the respondent this Court was pleased to dismiss his writ petition and vide order, dated 12-1-1988 had advised him that if he felt aggrieved he could file a private complaint. Instead of filing the private complaint he filed application for summoning the petitioner as an accused which was dismissed on 11-2-1990 and his subsequent application, therefore, with similar prayer was not maintainable and the order dated 8-9-1991 passed by the learned trial Court is, therefore, illegal and without jurisdiction. He further maintained that in a judgment reported as Muhammad Ibrahim v. Qudrat Ullah PLD 1986 Lah. 256 this Court has laid down the guiding principle which clearly entails that where the police declares an accused as innocent the complaint would be the proper remedy and the learned Additional Sessions Judge in sheer violation of this Court's order, dated 12-14988 passed in writ petition and in complete ignorance of the law laid down by this. Court has passed the impugned order which has thus rendered ab initio, void. It was vehemently argued that the impugned order proceeds on the partial statement of Muhammad Amin P.W.7 which is not evidence in law because the evidence comprises the statement of witness on oath which necessarily includes his examination-in-chief, his cross-examination and the re-examination, if any In this case, the examination-inchief of Muhammad Amin was recorded when the application was made and allowed. It was lastly argued that the petitioner was never discharged from the case as he was never arrested and was not even placed in column No,2 of the challan and, therefore, the learned trial Court passed the impugned order on the misconception of facts, so the order is not tenable under the law.
5. Conversely Sahibzada Farooq Ali, Advocate the learned counsel appearing on behalf of the respondent contended that according to the F.I.R. Zahid Anwar Wahla petitioner is the principal accused who has been attributed the only fire-arm injury found on the person of Muhammad Imran which proved fatal. The statement of all the eye-witnesses recorded under section 161, Cr.P.C.
And the statement of Muhammad Amin respondent as P.W.7 constituted a sufficient material to summon the petitioner as an accused person. He after placing reliance upon a judgment of the Supreme Court reported as Raja Khushbakhtur Rehman and another v. The State 1985 SCMR 1314 submitted that the Court takes the 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. He maintained that the Court is to see the material placed before it, in the form of F.I.R., medical report, statements recorded under section-161, Cr.P.C. And as in this case the examination-in-chief of P.W.7 which implicated fully the petitioner as the main accused so it was sufficient for the trial Court to summon him as an accused person in the case.
6. I have heard the arguments of both sides and-have gone through the evidence so far recorded and the other material available on record very minutely. Admittedly according to the F.I.R. The petitioner Zahid Anwar Wahla has been named as the principal accused having been attributed the only fire-arm injury on the person of the deceased. The statements of the eyewitnesses mentioned in the F.I.R. Recorded under section 161, Cr.P.C. Also nominated him as the accused during the trial when six P.Ws. Were examined, the respondent was examined, as P.W.7. He made an exhaustive statement during his examination-in-chief and again nominated the petitioner as the principal accused and when his examination-in-chief was completed he made an application for summoning him which 'was allowed. So far as the plea of innocence of the petitioner is concerned I endorse the view of the learned trial Court that the same is to be raised and proved during the trial, and there existed a sufficient material on the record which prima facie connects the petitioner with the crime resulting in the murder of Muhammad Imran. I agree with the learned counsel for the respondent and there is no cavil to his arguments that the simple examination-in-chief is not a complete statement of a witness so long as he is not cross-examined but that argument is not relevant in this case that the learned trial Court should have allowed the defence to cross-examine P.W.7 and then he could put in service the statement of P.W.7 because it was not complete without cross-examination. In this case when the respondent fully implicated the , petitioner it was considered as material implicating the petitioner so in My view the petitioner was rightly summoned as an accused. As laid down by their Lordships of the Supreme Court in Raja Khushbakhtur. Rehman's case (supra) the word cognizance, is a term of art implying application of mind to the facts. Of a case. The Magistrate takes cognizance of a case as a whole and not qua some of accused found by police to be implicated in the case. Cognizance can be taken even if offenders be unknown. On taking cognizance of offence acquires jurisdiction over all persons involved and not only over persons against whom the challan is submitted. If the trial Cow .Having given reasons for summoning the accused after perusal of record of the case then his order'does not suffer from any legal infirmity.
7. As far as the order dated 12-1-1988 passed by this Court is concerned the petitioner was advised to file a complaint but at that time the trial in the case had not commenced and it was never held that the accused cannot be summoned even in the challan case if some material is produced in the Court against him by the trial Court. As far as the order, dated 11-2-1990 passed by the learned predecessor of the learned Additional Sessions Judge was concerned that was passed before recording the evidence and obviously it was for want of sufficient material against the petitioner that he was not summoned as an accused at that stage. As rightly found by the learned trial Court that order dated 11-2-1990 was not a bar to the successor Court to summon the accused if some further material had come on the record during the commencement of the trial. Even the fact that the name of the petitioner does not figure in column No,2 of the cliallan as mentioned above does not debar the Court from summoning him as an accused. It is also a settled law as laid down in Waqar-ul-Haq v. The State PLD 1988 Lah. 336 that the Magistrate making discharge order or cancellatitan of F.I.R. Does to effect the jurisdiction of the trial Court to summon an accused if the material is produced before it. The upshot of the above discussion is that the revision petition having no force is dismissed.