' This is a revision petition filed under section 435 read with section 439, Cr.P.C. By some five persons who are joined as co-accused in a Sessions Case No,319 of 1993 by the order, dated 12-9-1994 passed by the Trial Court/III Additional Sessions Judge, Hyderabad.
2. Brief facts of the case are that on 23-4-1993 an F.I.R. Was lodged by respondent No,2, namely, Shafqat Jilani with Police Station Hala under sections 147, 148, 452, 504, 427 and 506, P.P.C. (Crime No,16 of 1993) implicating some seven persons. The case was investigated and the police filed challah in the Trial Court showing applicant No,1, namely, Inayatullah and another person namely, Fatehullah in Column No,2 of the challah as persons not sent up for trial. Before commencement of the trial and even prior to framing of charge the complainant/respondent No,2 filed an application under section 173, Cr.P.C. With a prayer that the present five applicants be impleaded as co- accused. The learned trial Court/III Additional Sessions Judge, Hyderabad granted that application on the reasoning that the allegations raised by the complainant in his application under section 173, Cr.P.C. Were serious in nature and that according to statement recorded by the Mukhtiarkar in proceedings under section 107, Cr.P.C. The names of the present applicants were mentioned as culprits in the instant offence. This order has given rise to the present controversy raised in the petition for criminal revision.
3. I have heard Mr. Muhammad Ashraf Leghari, Advocate for the applicants, Mr. Muhammad Jamil Zubedi for respondent No,2 and Mr. Agha Khuda Bux, Advocate for the State. It was argued by Mr. Muhammad Ashraf Leghari that the trial Court was not competent to implicate the applicants without having any material before it and who were already exonerated during police investigation. He has placed reliance on the case S. Akhtar Sher v. The State and another 1991 MLD 1977, Muhammad Hussain v. S.H.O., Police Station Bikhi and others 1993 MLD 2024, Nasrullah v. The State 1997 MLD 1430 and Muhammad Khan v. Haji Ghulam Qadir Brohi and another 1996 PCr.LJ 99.
Learned counsel appearing for the State has supported the arguments of the learned counsel for the applicants.
4.It was argued by Mr. Muhammad Jamil Zubedi, learned counsel for the respondent No,2 that in the initial complaint lodged with the Police the complainant has mentioned the names of the present applicants with the role they played in the alleged offence but the police did not implicate them in the offence and, therefore, the complainant was justified to file application under section 173, Cr.P.C. In order to seek joining of the applicants as co-accused. In the first place, I am not impressed by the arguments that the complainant is entitled to maintain an application under section 173, Cr.P.C. This provision of law gives authority to an Investigating Officer to conclude investigation and to file charge-sheet/challah with the trial Court. If the complainant was not satisfied by the police investigation, he could have filed a direct complaint but that was not done.
In no manner are the provisions of section 173, Cr.P.C. Available to the first informant of the F.I.R. To get the person of his choice implicated before the Court of Session. It is meant to ensure filing of a final report/challan after completion of the investigation.
5. Indeed, a Trial Court is competent to call/summon any person and to join him as co-accused during the trial but such power is to be exercised when there is sufficient material before the Court -connecting such person in the alleged offence. By the term "material before the Court", I mean the record of the proceedings of the trial or the material collected by the Investigating Agency and not extraneous material which does not form part of the record or of the investigation. In S. Akhtar Shaikh (supra) a learned Judge of Baluchistan High Court Munawar Ahmed Mirza (as his Lordship then was) while following the rule laid down in the case Doran Khan v. State PLD 1985 Quetta 188 and Muhammad Ibrahim and others v. Qudratullah Ruddy and others PLD 1986 Lah. 256 held, inter alia, that the Sessions Court has no jurisdiction to summon the accused mentioned in Column No,2 of the challah/charge-sheet or against whom evidence is found deficient during enquiry or reconciling of evidence. In Muhammad Khan (supra) it was held by my learned brother .Abdul Hameed Dogar, J. That "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 cases where incriminating evidence is available on record of the case or when some material implicating him is brought on the record after evidence is recorded at the trial".
6. The provision of section 173, Cr.P.C. Was considered earlier by the Honorable Supreme Court in the case Falak Sher and another v. The State PLD 1967 SC 425, where it was held, inter alia, that the Magistrate is not bound by the report submitted by the Police under section 173, Cr.P.C. And that there is nothing in section 190, Cr.P.C. To prevent a Magistrate from taking cognizance of the case under clause (b) in spite of the Police Report. The view held in the case Falak Sher (ibid) was reiterated by another Full Bench of Honorable pc, Supreme Court in the case Muhammad Akbar v.
The State and another 1972 SCMR 335, where it was observed, inter alia, that "After all the Police is not the final arbiter of a complaint lodged with it". The rule laid down by the Supreme Court in the case of Muhammad Akbar (ibid) was followed by a learned Single Judge of this Court, Saeeduzzaman Siddiqui, J. (as his Lordship then was) in the case of Ali Mardan v. The State 1986 PCr.LJ 1206 where it was held that "no exception could be taken to any cognizance taken by Court of Session against accused by directing him to appear before him, as from the material before the said Court it was sufficient to warrant such an order". Reference was made to the case of Muhammad Aslam v. Mst. Natho Bibi PLD 1977 Lah. 535 in Ajmal Aqeel v. The State PLD 1992 Kar. 155, it was held by this Court that the trial Court is competent to take cognizance of the offence against the person shown in column 2 of the challah, if on the basis of evidence brought on its record, he is found to be involved in the case. The same view found favor in another case of this Court Sohno v.
The State and another 1990 PCr.LJ 1190. Recently, a learned Single Judge of the Federal Shariat Court, Nasir Aslam Zahid, J. (as his Lordship then was) in Shaukat Ali and 2 others v. The State 1995 PCr.LJ 1749 while referring to the case of Haji Muhammad Aslam v. The State 1986 PCr.LJ 1492 accepted the revision petition and set aside the order of trial Court with the following observations:-- "5. After perusal of the report order section 173, Cr.P.C. And the order, dated 17-2-1994 passed by the trial Court, I am also of the view that the order has been passed for issuance of process against the petitioners by the trial Court apparently without realizing that the names of the three petitioners have been placed in Column No,2 of the challah and, according to Police, no evidence was found to implicate the petitioners in the offence in question. This should not be taken to mean that the opinion of the Police is binding on the trial Court. However, it was incumbent upon the trial Court, before issuing the process against the three petitioners, who had been placed in Column No,2 of the challah, to look at the material available with the Police and then pass the order which would have indicated that the Court had come to the prima facie conclusion that on the basis of the material available with the Police, the petitioners were involved in the offence in question."
7. As a result of above discussion the revision application filed by the applicants is accepted and the order, dated 12-9-1994 passed by the learned IIIrd Additional Sessions Judge, Hyderabad in State v. Abdul Rahim Qureshi and others S.C. No,319 of 1993 is set aside. It is observed that it will be open to the trial Court to pass any order directing present applicant to join the trial as co-accused pending further trial, provided some sufficient evidence is brought on record during the trial implicating all or any of the applicants named above.