1. ' Applicant has challenged the legality correctness and propriety of an order, dated 2-11-1994 passed by learned First Additional Sessions Judge, Larkana, whereby joining the applicant as accused, by way of filing this revision application under sections 435, 439-A, Cr.P.C. Read with section 561-A, Cr.P.C.
2. ' Brief facts of this revision application are that name of applicant Muhammad Khan was shown in column No,2 of the challan in Crime No,67/91 Police Station Wagan in Sessions Case No,28 of 1993 State v. Zulfiqar All Chandio and 3 others pending in the Court of learned First Additional Sessions Judge, Larkana. Criminal Miscellaneous Application was filed by Haji Ghulam Qadir the complainant of the case under section 193, Cr.P.C. In the Court of learned First Additional Sessions Judge summoning him to join as accused as his name was placed in column No,2. Learned First Additional Sessions Judge, Larkana has allowed the application by passing order, dated 2-11-1994, which is challenged in this revision application. For the proper appraisal of evidence the facts of the prosecution case as mentioned in Crime No,67/91 Police Station Waggan are given as under:-- ' That on 4-10-1991 at 8-45 a.m. Complainant Haji Ghulam Qadir Brohi lodged the F.I.R. At Police Station Waggan stating therein that he, his brother Muhammad Soomar, sons Juman and Ghulam All went to purchase meat from the shop of Ashraf Korai, when they were taking the meaning and Haji Ahmed Chana, Mumtaz Isran and others were also standing there, accused Zulfiqar armed with DBBL gun and Manzoor empty-handed came there who told that Muhammad Soomar was not settling the matter of plot and saying this he instigated his brother Zulfiqar to murder Muhammad Soomar and on his instigation accused Zulfiqar fired two shots at him who fell down.
3. The accused also fired another shot which hit Muhammad Juman, Haji Ahmed and Mumtaz Ali.
4. Then the accused persons ran away from the Wardat.
5. ' Mr. All Murad Abro learned counsel for applicants contends that the learned First Additional Sessions Judge has not properly appreciated the evidence against applicants as according to him applicants Muhammad Khan is neither said to be present at the time of incident nor has instigated the commission of this offence by giving Hakal or challenge. The only allegation against applicant in the end of F.I.R. Is that this incident has taken place at the instance of applicant Muhammad Khan. Mr. All Murad Abro has further argued that P.W. Muhammad Lukman, Haji Imdad and Mumtaz who are injured have also not implicated the applicant in their 161 and 164; Cr.P.C. Statements by way of showing the presence of applicant at the place of incident. They have also simply repeated same thing that this incident has occurred at the instance of applicant like that of F.I.R. Mr. All Murad Abro further contends that applicant has also nothing to do with motive as the motive according to the F.I.R. And the statements of the P.W. Is against the co-accused Manzoor and Zulfiqar with whom complainant is on disputed terms over landed property. So from the material on record of this case there is no prima facie case against applicant to summon him and join him as co-accused by learned trial Court, therefore, this revision application may kindly be allowed. Mr. All Murad Abro has submitted that application has been moved under section 193, Cr.P.C. In the Court of learned First Additional Sessions Judge, Larkana on 15-6-1993 which is after one year eight months and eleven days of incident, therefore, it is a badly time barred and even order has been passed after one year four months and thirteen days of filing of application, therefore, this may also be taken into consideration. He has relied upon 1986 PCr.LJ 1206.
6. ' Mr. Ghulam Asghar Abro learned Advocate for respondent No,1 contends that learned First Additional Sessions Judge has rightly summoned the applicant and submits that there is prima facie case against the applicant Muhammad Khan as applicant is the person who has abetted commission of this crime and is liable to be punished under section 109, P.P.C. Mr. Ghulam Asghar Abro has further contended that police has let off the applicant on the point of alibi which also does not support him as his presence has not been shown at the place of Wardat at the time of incident. He has relied upon the case of Muhammad Muslim v. The State 1988 SCM R 1243 and case of Dilawar and Safdar 1990 PCr.LJ 158.
7. ' Mr. Abdul Fatah Mughal appearing for A.A.-G. Contends that there is simple allegations against applicant that this incident has occurred at his instance, but this allegation has not been proved in the investigation by the Investigating Officer as such applicant was found innocent and his name was kept in Column No,2 of the challan. He supports the allowing of revision application.
8. I agree with the argument advanced by learned counsel for applicant and counsel for State and have gone through the contents of the F.I.R., 161 and 164, Cr.P.C. Statements and find that the role assigned to the applicant in the case of prosecution is that incident occurred at the instance of applicant. The arguments of learned counsel for respondent No,1 that applicant is liable under section 109, P.P.C. Is not sustainable as he has not been able to show that any criminal conspiracy was arranged for the commission of this offence by applicant prior to happening of this incident.
9. He has also not been able to satisfy this Court that any prior meeting has also happened in between applicant and co-accused so that common intention could also have been gathered with regard to this incident. No doubt Court of Sessions can take' cognizance of the offence and summon any person as accused as is envisaged under section 193(1), Cr.P.C., but in appropriate case where there should be incriminating evidence available on the record of the case or when some material implicating the accused is brought on the record after evidence is recorded at trial.
10. Here in this case there is simple word of complainant which is not supported by the evidence at the trial, as such, presently there is insufficient evidence to connect the applicant with offence and summon him as an accused. The order passed by the trial Court summoning the applicant and joining him as an accused, is set aside. However, it is left to the Court of learned First Additional Sessions Judge, Larkana (trial Court) to call and join the applicant as accused if some evidence implicating him in the commission of offence is borne out at the trial after examining the complainant and P.Ws. Criminal Revision application is accordingly disposed off.