1. 1 & 2. This revision application is directed against the order, dated 10-10-2000, passed by the 1st Additional Sessions Judge, Sukkur in Criminal Miscellaneous Application No,10 of 2000 in Sessions Case No,78 of 2000.
2. ' On 23-10-2000 the F.I.R. No,5 of 2000 was registered at Police Station Dubber of District Sukkur on the complaint of complainant Eidan son of Menhoon Mangrio in an offence under sections 302, P.P.C. And 13-D, Arms Ordinance against the accused Hasal son of Muhammad Mithal, Abdullah son of Noor Muhammad, Muhammad Waris son of Muhammad and Din Muhammad alias Dino son of Muhammad Mithal. After due investigation of the crime, the charge-sheet was presented in the Court of Civil Judge and F.C.M., Rohri. The same was sent to the Court of Sessions Judge, Sukkur, as provided under subsection (3) of section 190, Cr.P.C. To stand their trial in the Court of law.
3. ' The present applicants were shown in Column No,2 of the charge-sheet, as they were let off under section 497, Cr.P.C.
4. ' The complainant/respondent No,1 had filed Criminal Miscellaneous Application No,10 of 2000 in the Court of 1st Additional Sessions Judge, Sukkur, praying therein that the present applicants/accused be joined as accused to stand their trial with the other co-accused. The Criminal Miscellaneous Application No,10 of 2000 was allowed and it is observed as under:-- ' "From the perusal of the record I am of the humble view that the names of accused appear in the F.I.R. And in the statements of P.Ws. Recorded under section 161, Cr.P.C. While allegation against the proposed accused Dino is that he instigated others for the murder of deceased Bullo.
5. ' Under these circumstances, this application is allowed and accused Abdullah, Muhammad Waris and Din Muhammad alias Dino are joined in this case to face the trial. They are present on the notice of this application they are directed to furnish surety each of them in the sum of Rs,1,00,000 and P.R. Bond in the like amount."
6. ' The learned counsel for the applicants has mainly contended that there was no material before the trial Court for issuance of process against the applicants and the order of trial Court is without jurisdiction. It is further argued that after due investigation of the crime they have been rightly let off by the Investigating Officer and placed their names of Column No,2 of the charge-sheet. The learned counsel for the applicant has relied upon the case of Inayatullah and others v. The State and others reported in 1999 PCr.LJ 731. In this case, it is laid down that complainant after submission of charge-sheet could have filed a direct complaint. It is further observed in this case, that the trial Court is competent to call/summon any person and to join co-accused during the trial.
7. ' Mr. Manzoor Ahmed Junejo, learned counsel for the respondent No,1, has supported the order, dated 10-10-2000 and further contended that the names of the applicants are mentioned in the F.I.R. And P.Ws. Have implicated them in 161, Cr.P.C. Statements and Investigating Officer was not supposed to let off the accused, as there is sufficient evidence against them and have also played an active role in commission of the offence. It is pointed out by him that the trial Court has already framed the charge and case is fixed for regular trial. The learned counsel for the complainant has relied upon the following cases:-- 1990 PCr.LJ 1190, 1993 PCr.LJ 686 and 1991 PCr.LJ 443.
8. ' Mr. Mumtaz Ali Siddiqui, learned counsel for the State submits that the order passed by the trial Court is proper and there is no illegality to set aside the same.
9. ' I have gone through the material placed on the record. The incident had taken place at 6-00 p.m.
10. When the deceased Bullo was present in the Otaq situated in Village Nawaz Mangrio at that time the deceased went to water pump for washing his hands. In the meanwhile accused Dino, Hasul, Waris and Abdullah with guns alongwith unidentified persons armed with Lathi appeared. Accused Dino challenged the complainant saying that they had committed the murder of his father instigated other accused to which all the accused fired shots on the deceased Bullo while a fire shot of Hasul hit the deceased, who fell down and died.
11. Since there is rule laid down by the Honourable apex Court that the report of Investigating Officer under section 173, Cr.P.C. Is not binding on the Court and, therefore, notwithstanding the recommendation of the Investigating Officer regarding the cancellation of case and discharge of accused from the allegation, the Court is authorised to take the cognizance as provided in section 190, Cr.P.C. And summon the accused to face the charge in the trial Court. The similar view has been taken in case of Falak Sher and others v. The State reported in PLD 1967 SC 425. In this case it has been dilated that it is for the trial Court to decide the fate of the case on merits. In another case, Mukhtiar Ali and others v. Sono and others reported in PLD 1993 Kar. 342, it is held that when the names of accused persons appear in the F.I.R. And specific part is attributed and version of P.Ws. Support the case of complainant, the trial Court is competent to call upon the accused persons to face the trial in the Court.
12. ' In another case, reported in 1998 SCMR 1128, the Honourable Supreme Court of Pakistan held that person whose name appears in column 2 of the challan can be summoned by the trial Court directly to stand trial and it is not necessary that first some evidence should be recorded.
13. ' Mr. Mumtaz Ali Siddiqui on behalf of A.A.-G. Supported the order of the trial Court.
14. ' In view of the rule laid down by the Honourable Supreme Court in the aforesaid cases, it is held that persons placed in column 2 of challan, submitted in the Court of a Magistrate, which was sent to the Court of Sessions, could, be summoned by the Sessions Judge on his taking cognizance of the offence. The names of the applicants appear in the F.I.R. And specific part is attributed to them, their names also appear in the police statements. In the circumstances, the Sessions Judge was competent to call upon the applicants to face their trial. There is no irregularity or illegality or impropriety appears in the impugned order. Accordingly, this revision application is dismissed alongwith the listed application.