This criminal revision has been filed by Khadim Hussain petitioner and 2 others against the order, dated 3-5-1995 passed by Additional Sessions Judge, Multan whereby the petitioners were summoned to face the trial in case F.I.R. No.106, dated 24-4-1994 registered at Police Station Alpa, District Multan.
2. Respondent No.2 Allah Wasaya got registered abovementioned case against the petitioner and two others under section 302/324/109, P.P.C. On the allegation that the petitioner along with others committed the murder of Mst. Iqbal Maee and caused injuries to the prosecution witnesses.
3. The petitioners were arrested during the investigation. Investigating Officer declared the petitioners innocent and this opinion was also confirmed by A.S.P. Circle, Multan. The police submitted the report and 'the petitioners were discharged by the Magistrate on 22-8-1994. The challan was prepared thereafter and the Ilaqa Magistrate sent the case to the learned Sessions Judge, Multan who entrusted the same to the Court of Additional Sessions Judge, Multan. The names of the petitioners did not figure under Column No.2 or 3 of the report under section 173, Cr.P.C. Learned Additional Sessions Judge on 3-5-1995 summoned the petitioners to face trial through bailable warrants. The learned counsel for the petitioners has argued that the impugned order is illegal and the trial Court has no powers to summon the petitioners to face trial in a case, which had been cancelled by the Magistrate. As the names of the petitioners did not figure in Column No.2 or Column No.3 of the challan, the trial Court was not justified in summoning the accused without recording the evidence. According to the learned counsel they were not the accused who were sent to the Court to face trial.
4. The State Counsel defended the impugned order and submitted that the impugned order is legal and proper hence sustainable in the eyes of law.
5. I have heard the learned counsel for the parties and have gone through the record.
6. The trial Court observed that from the perusal of the record, it appeared that the case about murder of lqbal Mai deceased and launching of murderous assault upon Muhammad Anwar, Riaz, Ghulam Sughran, Mst. Ijaz Mai and Mst. Ghulam Sakeena injured P.Ws., was registered on the statement of Allah Wasaya against Khadim Hussain, Haq Nawaz, Atta Muhammad and others. In para. 4 of the impugned order the trial Judge observed that all the eye-witnesses including the complainant in their statements under section 161, Cr.P.C. Have prima facie supported the prosecution case and fully implicated the petitioners in the commission of the offence but according to the Investigating Officer they were found innocent and got discharged. The tentative assessm ent of the material brought on record according to the trial Court, raised legitimate belief that the petitioners were also guilty of the murder of Mst. Iqbal Mai and murderous assault upon the aforesaid injured P.Ws. According to the trial Court the mere fact that they were found innocent was hardly sufficient to detract the Court from summoning them to face trial without recording the evidence.
7. The opinion of the police is not binding upon the Courts. The police has no authority whatsoever to give judgment about the merits of the case. This definitely is the job of the trial Court. The trial Court after recording the evidence and hearing the parties shall decide about the guilt or innocence of the accused at the stage of trial. Strictly speaking the discharge order passed by the Magistrate is not a judicial order. It is an executive order and the Sessions 8 Court has jurisdiction to try a person who has been discharged by the Magistrate.
8. The Court takes cognizance of the case as a whole and not qua some of the accused found by the police implicated in case. Cognizance can be taken even if the offender is unknown. On taking cognizance of the offence the Court C acquires jurisdiction over all the persons involved and not only over the persons against whom the challan is submitted. Cognizance means application of mind to the facts of the case in order to determine whether the facts disclosed constitute an offence triable. Application of mind for the purpose of cognizance under p section 190(1) and (3) read with section 193, Cr.P.C. Is for the purpose of determining whether the facts disclosed constitute an offence triable exclusively by the Court of Session. A Magistrate sends the whole case to the Court of Session and not qua the accused only who are placed in column No.2 or 3 of the report under section 173, Cr.P.C.
9. The present case has not been cancelled. Only the petitioners were found innocent and they were discharged under section 63, Cr.P.C. Whereas other accused named in the F.LR. Were challaned. It is clear that the challan was submitted to the Court of Magistrate who took the cognizance and sent the case to the Court of Session for trial. In the presence of the material on record there was no need to record the statement of the witnesses first and then to call the petitioners to face trial by Additional Sessions Judge. It would amount to rehearsal of a full-fledged trial and wastage of precious time of the Court and public at large.
10. The challan case cannot be equated with a complaint case. It may be necessary under section 202, Cr.P.C. To record statement of the complainant before summoning the accused person to face trial under section 204, Cr.P.C. But the situation is different in a case in which the police record the F.I.R. And submits the challan in the Court. Section 265-B, Cr.P.C. Deals with the procedure to be adopted by the Sessions Court and section 265-C provides that F.I.R. Police report, statement of all the witnesses recorded under sections 161, 164 and the inspection note recorded by the Investigating Officer on the first visit to the place of occurrence and note recorded by him, recoveries if any shall be supplied free of cost to the accused and the Court after perusing the police report and all other document and statements filed by the prosecution will form its opinion, if there is ground for proceeding with the trial of the accused and then it shall frame in writing charge against the accused as provided under section 265-D, Cr.P.C.
11. Section 265-C and section 265-D of Cr.P.C. When examined together would show that before the start of the trial material placed by the prosecution along with report under section 173, Cr.P.C. Is to be examined by the trial Court. It is not disputed by the learned petitioner's counsel that the petitioners were named in the F.I.R. And the injured prosecution witnesses have named them in their statements recorded under section 161, Cr.P.C. It is not necessary for the trial Court to record statement of the complainant or the prosecution witnesses before summoning the accused to face trial, in a case registered by the police. Accusation against the petitioners do exist in the first information report and the statements recorded under section 161, Cr.P.C. Prima facie, there exists reasonable ground to proceed with the trial against the petitioners. It would be immaterial if the name of the accused were mentioned in the column No.2 or 3 of the challan or not.
12. For what has been stated above, I am of the considered view that the impugned order summoning the petitioners to face the trial is neither illegal nor improper. The learned Additional Sessions Judge has given cogent reasons to summon the petitioners to face the trial. The impugned order is a speaking order Consequently, the Criminal Revision No. 112 of 1995 is dismissed. The impugned order is upheld.