' This criminal revision impugns the order, dated 5-7-2001 passed by the learned Special Judge, Rawalpindi whereby the petitioners, namely, Haji Mehboob Khan and Mehmood-ul-Haq who were placed in Column 2 of the report under section 173, Cr.P.C. Have been summoned.
2. According to learned counsel for the petitioners, the petitioners were summoned in a mechanical way and without there being any evidence against them and that in case their presence before the Special Court was necessary, the Court should have taken support from such evidence through reference to such material.
3. A report under section 173, Cr.P.C. Is also called challan (when a complete report is submitted) a final report or the charge-sheet. This is a final step at the end of the investigation and reflects the formation of an opinion by the police as to whether or not there is a case to place the accused on trial. In the alternate it may recommend for the cancellation of the F.I.R. If the evidence was not forthcoming. The report may not be up to the mark and may even be based on mala fides or could be mischievous but the Courts have no judicial control over the Investigating Officer for requiring him to submit a report in a particular manner. There is also no provision of submission of an interim or incomplete report under section 173, Cr.P.C. But when a Court decides to proceed with the case, it proceeds on the basis of the police charge-sheet. Reference in this connection may be made to State v. Zulfiqar Ali Bhutto and others PLD 1978 Lah.
523.
4. This report is sent in a form prescribed by the Provincial Government. It contains the names of the parties, the nature of the information received, the names of persons who appear to be acquainted with the facts of the case and state whether the accused if arrested have been forwarded in custody or have been released on bail.
5: The list of witnesses which is given by the police in the charge-sheet is more a rule of practice.
Reliance in this behalf may also be placed on AIR 1930 Mad.
191. But this does not disable the prosecution from examining more witnesses and in any case the power vested in the Court under section 540, Cr.P.C. Is not subject to any restrictions. However, the non-compliance of the provisions of section 173(1), Cr.P.C. Renders cognizance illegal and invalid and the defect is incurable under section 537, Cr.P.C. Reference may be made to Abdullah Shah v.
State PLD 1962 Kar.
633.
6. It is also not necessary for the police to give abstract of evidence taken during investigation.
However, in Column 6 of the charge-sheet, the substance of the statements of the witnesses made before the police is reflected and is useful for the Court.
7. Documents of investigation which later ought to be placed on the judicial file are also appended with the charge-sheet but these can always be produced later on. Statements of witnesses recorded under section 161, Cr.P.C. Form part of the charge-sheet.
8. Often the police is not sure through its investigation whether any of the persons accused can be put on trial. Such type of accused are placed in Column 2 of the report.
9. When a challan is submitted, the Magistrate taking cognizance of offence becomes seized of the entire case and seisin extends to persons who may appear implicated although placed in Column 2 of the challan. Because obviously a Court takes cognizance of the offence and not of an offender, even if he is unknown. Even persons who may have been discharged under section 63, Cr.P.C.
Because of their placement in Column 2 of the challan can be resummoned. Reliance in this connection may be placed on Raja Khushbakhtur Rehman and another v. The State 1985 SCM R 1314, Sardar Ali and others v. The State PLD 1966 (W.P.) Lah. 790, Falak Sher and another v. The State PLD 1967 SC 425, Mukhtar Ali and 2 others v. Sono and another PLD 1993 Kar. 342 and Waqarul Hay alias Mithoo and another v. The State 1988 SCM R 1428.
10. The Court, therefore, while summoning such type of witnesses has to convince itself on the basis of material which may be before it and which ought to be referred to for summoning the accused placed in Column 2. Because obviously they have not been charge-sheeted by the police. The evidence may be located in the challan itself which may have been misread by the police or it may be on the basis of evidence produced before the Court after the submission of the report/challan.
But without making reference to any such material or furnishing arguments, a Court cannot act mechanically to summon the accused placed in Column 2 of the report/challan. Once the Court discovers the incriminating material, it can always summon the accused otherwise placed in Column 2. Reliance may be placed on Raja Khushbakhtur Rehman and another v. The State 1985 SCM R 1314.
11. Reference in this connection may also be made to Khalid Iqbal v. The State 1991 PCr.LJ 443, Shaukat Ali and others v. The State 1995 PCr.LJ 1749 and Haji Muhammad Aslam v. The State 1986 PCr.LJ 1442.
12. As there is no reference to any such material in the impugned order justifying the summoning of the petitioner, therefore, the impugned order is not sustainable in law and is set aside. However, the trial Court may summon the petitioners whenever it has material evidence before it. Disposed of accordingly.
Revision .