' Through this revision petition the petitioners have challenged order, dated 13-12-1993 whereby the learned Additional Sessions Judge has also summoned the petitioners to stand their trial and the criminal case registered vide F . I . R. No,88, dated 21-9-1992 for offences under section 302/324/148/149 of the P.P.C. At Police Station Shorkot Cantt. District Jhang.
2. Briefly stated, the facts of the case are that on a report lodged by Muhammad Siddique, the abovereferred case was registered against the petitioners and 5 others in respect of murder of Hafiz Khalil deceased and injuries caused to Muhammad Siddique, complainant and Abdul Ghaffar P.W. After investigation of the case, the local police. Found the petitioners to be innocent. On a move made by the complainant, the investigation was transferred to the S.P. Crimes Branch who also came to the conclusion that the petitioners were innocent and directed the S.H.O. To get. Them discharged from a Court of competent jurisdiction, Accordingly, a report was submitted before the learned Illaqa Magistrate who accepted the same and discharged the petitioners vide his order, dated 17-2-1993. The complainant did not seek any other legal remedy against the said order and opted to file a private complaint in the Court of learned Sessions Judge, Jhang which was entrusted to the learned Additional Sessions Judge for disposal. The Court recorded the statement of the complainant and sent the case to the Illaqa Magistrate for an inquiry under section 202 of the P.P.C. The Magistrate submitted his report stating therein that the petitioners were innocent and that the discharge order in their favour was rightly passed.
3. The police submitted challan against 5 co-accused of the petitioners. The complainant filed a miscellaneous application on 4-11-1993 before the learned Additional Sessions Judge, Jhang for summoning the petitioners to stand their trial alongwith their co-accused. This application was allowed vide order, dated 13-12-1993. The complainant's object was achieved and he withdrew his private complaint on the same day i,e, 13-12-1993.
4. The petitioner's learned counsel contends that the trial Court had acted illegally in summoning the petitioners because their names did not figure under column No,2 of the challan; that the trial Court had not recorded any evidence to justify the older for summoning the petitioners; that in presence of the discharge order passed by the competent Court and withdrawal of the private complaint, the impugned order cannot be sustained. In support of his contentions, he relies on the following judgments:--
(1) Syed Hamid Muqeem Bokhary v. The State PLD 1985 Lah. 71,
(2) Awal Khan v. The Superintendent of Police, Attock and 13 others 1989 PCr.LJ 909
(3) Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187.
' He further submits that there were 'two criminal cases between the parties one registered on the statement of Amir Ali petitioner No,1 vide F.I.R. No,10 of 1991 for an offence under section 324 of the P.P.C. And the other, on the statement of Muhammad Siddique vide F.I.R. No,88 of 1992; that both the parties arrived at a compromise in pursuance of which they filed a miscellaneous application (Criminal Miscellaneous No,571/M of 1995) in this Court which was disposed of on 28-5-1995 with the order that the parties may approach the trial Court for deciding the case on the basis of compromise between the parties; that accordingly Amir Ali, petitioner No,1 and Azmat Ali, the injured P.W. Made statements before the trial Court and the accused persons were acquitted vide judgment dated 30-8-1995; however, in the case against the petitioners, Muhammad Siddique complainant resiled from the compromise despite receipt of the amount of Diyat and that now they have to face the trial alongwith their co-accused.
5. On the other hand, learned counsel for the State and the complainant urged that at the time when the impugned order was passed the private complaint was still pending and was subsequently withdrawn and that the petitioners were rightly summoned because their names had figured in the F.I.R. And definite roles were attributed to them in commission of the offence. In support of their contentions, they relied on the following judgments:--
(1) Raja Khushbakhtur Rehman and another v. The State 1985 SCMR 1314.
(2) Waqarul Haq alias Mithoo and others v. The State PLD 1988 Lah.
336.
(3) Muhammad Siddiq v. The State 1993 PCr.LJ 75.
6. Admittedly, the petitioners were found to be innocent during the course of investigation by two Investigating Agencies and they were discharged from the case vide order, dated 17-2-1993 passed by the learned Illaqa Magistrate. This was an administrative order and never assailed by the complainant in the higher legal forums. It attained finality. It was given effect to by the police when A it submitted challan against five co-accused of the petitioners and did not incorporate the petitioners names under column No,2 of the challan. Therefore, there was no legal justification to summon the petitioners without commencing the trial of the co-accused and recording some evidence which could, prima facie, provide basis for summoning them as accused in the case. I am fortified in my view by the judgment in the case of Syed Hamid Muqeem Bokhari, relied upon by the petitioner's learned counsel, in which it was held that once the case against an accused person was cancelled then there was no jurisdiction left with 9 the trial Court to summon a person as an accused without there being any material on the record against him. In the said case also the accused's name did not figure under column No,2 of the charge-sheet but they were summoned by the Court on a miscellaneous application filed by the complainant. The judgments relied upon by the learned counsel for the State and the complainant in the cases of Raja Khushbakhatur Rehman and another, Waqarul Haq alias Mithoo and others and Muhammad Siddiq are distinguishable as the names of the accused persons who were summoned to face their trial, had been placed under column No,2 of the charge-sheet.
7. For the foregoing reasons, the revision petition is accepted, the impugned order is set aside leaving it open to the trial Court to pass a fresh C order to summon the petitioners as accused persons if sufficient evidence was brought on the record against them during the course of trial of their co-accused.
Revision .