1. ' The incident of this case occurred on 30-9-2000 at midnight and the report was lodged on 1-10- 2000 at 02-20 hours at Saeedabad Police Station by one Noor Khan.
2. ' Briefly stated the facts of the case as stated by the complainant are that accused Abdul Ghafoor is his uncle, whose daughter Sumera was married to Khalid, who is son of his uncle Abdul Rashid alias Babo. The spouses could not maintain cordial relations and she started residing with her parents.
3. ' That on the fateful night at about 12-00 night there was a knock on the door. Father of complainant opened the door. As soon as, he opened the door, the wife of Abdul Rashid who was just by the side of door fell inside the house. The complainant saw that she was being followed by Munir alias Papoo son-in-law of Abdul Ghafoor and Mustafa, who were having pistols in their hands. They pointed pistols to the father of complainant and opened fire which hit the deceased and complainant. It is stated in the F.I.R. That father of complainant snatched pistol from accused Mustafa, after that the culprits made their escape good in a white colour Carry Suzuki. On commotion Muhallah people gathered there. They came to know that the aforesaid accused Munir alias Papoo and Mustafa had committed this offence at the instance of accused Abdul Ghafoor.
4. The father of complainant was taken to hospital but he succumbed to injuries.
5. ' The police took up investigation and ultimately the name of present applicant Abdul Ghafoor was placed in Column No,2. They submitted report under section 169, Cr.P.C. And the applicant was not sent up for trial as the evidence against him was deficient.
6. ' The application was moved in the Court of 1st Additional Sessions Judge, Karachi West for the release of accused Abdul Ghafoor on the ground that he has neither been sent up by the police nor the Court has joined him as accused. The trial Court dismissed the application vide order dated 25-8-2001, the concluding para of which is as under:-- "A. 169, Cr.P.C. Application submitted by the prosecution had been rejected by the learned Judicial Magistrate No,III, Karachi West, and no revision had been filed against the said order since there is prima facie evidence available on record against accused, Abdul Ghafoor and.Report under section 169, Cr.P.C. Submitted has already been rejected and it is hereby ordered that Abdul Ghafoor accused is implicated in the case and his name is to be treated in Column No,2 and has to face trial under section 302/324/34, P.P.C. Of Police Station Saeedabad, Karachi, the application is disposed of accordingly."
7. ' It is argued that applicant Abdul Ghafoor was not present at the spot. The contents of F.I.R.
8. Indicate that some Muhallah people expressed their views, that the culprits might have been sent by applicant Abdul Ghafoor but no such witness was examined by the police. There is absolutely no evidence of conspiracy. No tangible evidence had been collected by the Investigating Agency to connect the applicant with this crime. The police submitted report under section 169, Cr.P.C. And placed the name of accused Abdul Ghafoor in Column No,2. The Judicial Magistrate refused to release the accused and passed an order that the case of the accused be sent up for trial.
9. Subsequently the same application was moved before the trial Court who endorsed the views of Judicial Magistrate and observed that since the said order was not challenged in revision, therefore, the order has attained finality and the accused has to face trial.
10. ' Mr. Arshad Lodhi learned, A.A.-G. Submits that the Judicial Magistrate was not competent to pass any order under section 169, Cr.P.C. He had simply to refer the challan to the trial Court for passing appropriate orders. The said order was without lawful authority which had been endorsed by trial Court.
11. ' The record reveals that applicant/accused was not present at the spot. No evidence is collected by the prosecution to connect him with the commission of offence. The complainant Noor Khan and P.W. Shafi Mughal have filed their affidavits. They are called in Court. They supported the contents of their affidavits and stated before me that the name of present accused was given due to some misunderstanding but in fact the culprits had not committed this offence at the instance of applicant Abdul Ghafoor. The police had not submitted challan against present applicant. His name was placed in Column No,2 and the report under section, 169, Cr.P.C. Was submitted to the effect that since the evidence against him was insufficient, therefore, the accused was not sent up to stand trial. Subsequently, the Judicial Magistrate was not A competent to pass any order under section 169, Cr.P.C. He could only send the case to Sessions Court for trial, without passing judicial order thereon. It was only for the trial Court to join the applicant as accused and then he could only be tried but that has not been done. The trial Court has only endorsed the views of Judicial Magistrate. There is absolutely no evidence in regard to conspiracy against the accused to connect him with the commission of this crime, The complainant and P.W. Have exonerated him.
12. Neither the accused was sent up by the police nor he has been joined as accused by the trial Court. For the foregoing reasons, the impugned order is set aside and the applicant/accused is to be released forthwith, if not required in any other case.
13. ' However, the trial Court would be at liberty to join the applicant as accused if some tangible evidence comes against him on the record. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.