' Muhammad Ali son of Din Muhammad, Abdul Majeed son of All Muhammad, Muhammad Rafique son of Ghulam Muhammad, Ahmad Rias son of Muhammad Zikria, Shaukat All son of Ali Muhammad, Muhammad Boota son of Abdul Ghani, all Arain by caste, residents of Chak No, 209, Police Station Kotwali, District Lyallpur have filed a revision petition under section 439, Cr. P. C.
Directed against the judgment of Ch. Nafis Ahmad Bajwa, Additional Sessions Judge, Lyallpur, dated 15-2-1977 and have prayed that the impugned order be set aside as being illegal.
2. The brief facts of the case are that a case under section 302/148/149, P. P. C. Was registered on 12-12-1972 on the strength of an F. L R. No, 559 at Police Station, Kotwali, District Lyallpur, at the instance of Faisal Muhammad against seven persons in all. This case was investigated by the Police who found only Akbar Ali as the culprit responsible for committing this offence of murder and placed the other six in column No, 2 as innocent. Dissatisfied with this local investigation, the matter was referred to the Crime Branch at the instance of the complainant, but the verdict was the same.
Ultimately, enquiry proceedings were started against all these accused seven in number. The learned Enquiry Magistrate recorded the statements of all the eye-witnesses plus a number of formal witnesses and the case automatically stood transferred under the Law Reforms Ordinance to the Court of Sessions Judge for trial. This case was marked to the learned Additional Sessions Judge by the learned Sessions Judge and thus the trial commenced. On the date when all these accused persons appeared before him the learned Additional Sessions Judge recorded an order which has been placed on the record as Annexure A. The English version of the same is available on the original record of the case. After perusing the police report, the statements of the witnesses and record of the case, the learned Additional Sessions Judge was of the opinion that only Muhammad Amin, Muhammad Rafiq and Akbar Ali were liable to be charged under section 302/34, P. P. C. With regard to the six petitioners it was observed that they are for the time being relieved and in case during the course of the trial, some evidence was recorded which implicated them with the commission of this murder, they would be proceeded against in accordance with law.
Later on the learned Additional Sessions Judge after recording the statements of 16 witnesses which included only two eye-witnesses that is Fatal Muhammad (P. W. 16) and Muhammad Sarwar Nasim, Advocate (P. W. 14), came to the conclusion vide his impugned order dated 15-2-1977 that as Fazal Muhammad had implicated these persons as guilty of this offence of murder, therefore he considered it appropriate to summon them as accused persons. He issued summonses in their names for the 23rd of February 1977 and allowed the witnesses to be discharged at that stage.
3. I have heard the learned counsel for the petitioners, the learned counsel for the State and Mr. Khalil-ul-Rehman Ramdey, Assistant Advocate-General who was called upon by this Court for assistance on this legal issue which has been so raised in this petition. The legal issue has been formulated in a proposition by Mr. Rim Anwar, Advocate in the following terms Once a Court acting under the amended section 265-D came to the conclusion that no case was made out against the accused persons before it and has recorded their discharge, could the same Court summon them again and try them for the offence with which they were charged earlier?
' The learned counsel while elaborating his arguments on his proposition has submitted that the words used by the learned Additional Sesssions Judoe in his order dated 10-2-1977 {{urdu text}} the English translation of which is "they are relieved for the time being" are unfamiliar as well as alien to the Code of Criminal Procedure or in legal parlance.
According to the learned counsel these words amount positively to the order of discharge which in terms of section 265-1( is an order of acquittal. Ho has also drawn my attention to the language of section 403, Cr. P. C. Which does not empower the criminal Court to try a person once he has heen acquitted. Similarly ho has invoked the application of section 369, Cr. P. C. Also by which no order in a criminal case can be reviewed by the Court passing the same.
4. The learned Assistant Advocate-General has conceded the proposition candidly by submitting that the conditional discharge is nowhere mentioned in law according to the Criminal Procedure Code. According to him the discharge is a discharge and tantamounts to acquittal. He has also explained the wisdom behind the amended law by submitting that earlier a power of discharge vested in the Enquiry Magistrate if he found that no evidence was on the record to connect the accused with the commission of the crime. But as the same power has been now taken away under the Law Reforms Ordinance, therefore in the larger interest of the safe administration of criminal justice, the same has been vested in the Sessions Judge that is the trial Court, in favour of an accused person. Let it be the proposition of law as enunciated by the Sessions Court I to satisfy myself as a matter of abundant caution, have probed a little deeper into the psychology of the learned Sessions Judge in order to satisfy myself whether his impugned order was justified on moral grounds or not. What I find from the record is that he has recorded the statements of two eye-witnesses only, ie. Fazal Muhammad (P. W. 16) and Muhammad Sarwar Nasim, Advocate (P. W.
14). Fazal Muhammad has repeated the same old tale as he did before the Enquiry Magistrate which was before the learned Addi- tional Sessions Judge in tote when he passed the first order and Muhammad Sarwar Nasim, Advocate (P. W. 14) has exonerated the petitioners as he did earlier before the Enquiry Magistrate. It is pertinent to note that all the eye-witnesses who did not support the case of the prosecution were never declared hostile by the prosecution before the Enquiry Magistrate and the statement of Muhammad Sarwar Nasim, Advocate before the learned Additional Sessions Judge also went unchallenged. In view of that matter, I am, surprised what was the data before the learned Additional Sessions Judge which made him change his mind and compelled him to summon the petitioners once he had discharged them (although be failed to use the correct legal language in that respect).
5. In view of the above, the result is that the revision petition is accepted and the impugned order is set aside. The learned Additional Sessions Judge will now proceed with the trial which unfortunately has been delayed for want of earlier decision in this case due to my non-availability at Lahore being a Member of the Special Court at Hyderabad.