This judgment shall decide Criminal Revision No. 175 of 2001 and Criminal Revision No. 185 of 2001 as both proceed against a common judgment of learned Additional Sessions Judge, Tallagang.
2. Since the criminal revisions have arisen out of proceedings in connection with trial which is still pending, I would not be referring in much detail to the facts of the case least any observation made may prejudice any of the parties. Suffice it to say that on complaint of Muhammad Masoom made at Police Station Taman, District Chakwal on 3-7-2001 at 7-00 a.m. In the morning, a case was registered under sections 302/324/148/149/341/342/365/427, P.P.C., inter alia, against the petitioners in these two cases. Investigations were conducted. In the first instance a report was filed under section 173, Cr.P.C. Stating it to be incomplete challan (Annexure-F). In this challan it was stated that while petitioner Sultan Surkhoru (Criminal Revision No. 175 of 2001) has been found innocent during the investigation, the petitioner Nigha Muhammad (Criminal Revision No. 185 of 2001) is yet to be arrested as he has been granted bail before arrest by the learned Sessions Judge at Chakwal. Thereafter, another report was filed and this was termed as "Tatima Challan". In this report it was stated that said Sultan was declared innocent and the incomplete challan was filed in Court. Thereafter the matter was investigated by Range Crime Branch and it was found that Sultan was not present at the place of occurrence when it took place. Similar was the report about Nigha Muhammad. These persons are being placed in Column No.2 and left at the mercy of the Court.
Then there is reference to Shafique, Nigha and Muhammad Anwar being placed in Column No.2.
The matter ultimately came up before the learned A.S.J. At Tallangag and vide order, dated 3-12- 2001 upon receipt of an application moved by the prosecution he proceeded to direct to summon the said persons for trial.
3. Dr. Z. Babar Awan, Advocate led arguments on behalf of the petitioners. He contends that an examination of the said final challan (Annexure-E) would show that Sultan petitioner is not mentioned in any of the column. The precise contention is that Sultan was never sent up for trial.
Further contends that since Sultan is not mentioned in Challan Annexure E, there has been violation of section 193(1), Cr.P.C. Read with section 190(3), Cr.P.C. Inasmuch as Court of Session stands debarred from taking cognizance of a case which has not been sent to it in accordance with section 190(3), Cr.P.C., that the impugned order has been passed without recording evidence, without looking into evidence on record and that no opportunity of hearing was given to the petitioners before passing the impugned order; that the order is silent as to why the petitioners have been summoned; that the impugned order is violative of section 204(1), Cr.P.C. As neither summons nor warrants have been issued in the name of the petitioners and learned A.S.J. Has simply fixed the case for appearance of the petitioner. Contention is that the petitioners are not aware as to what is to happen to them once they appeared before the Court; that a person mentioned in Column No.2 is not an accused person. Further argues that an accused person declared to be innocent need not to be discharged or the case cancelled and Police Officer himself is authorised to release the said person. Refers section 169, Cr.P.C.
3. Learned counsel for the State opposes the criminal revision on the basis of argument led by Sardar Muhammad Ishaq Khan, Advocate for complainant party. Now learned counsel contends with reference to the case of Waqarul Haq alias Nithoo and another v. The State (1988 SCM R 1428) that in similar circumstances the Hon'ble Supreme Court found an order of summoning of the accused persons placed in Column No. 2 to be lawful. Also refers to the case of Safdar Ali v. Zafar Iqbal and others (2002 SCM R 63). According to the learned counsel a Court takes cognizance not of the offender but of the offence and in the present case upon case being sent up by the learned Magistrate in terms of section 190(3), Cr.P.C. The learned A.S.J. Took cognizance of the offence and then proceeded to summon the petitioners who are accused of the commission of said offence.
Learned counsel informs and learned counsel for the petitioners concedes that in fact summons were issued in the name of the petitioners but further proceedings had not taken place because of stay issued by this Court in these criminal revisions. Further proceeds to state that a report under section 173, Cr.P.C. Based on the opinion of the Police Officer is not binding on the Court and it has all the jurisdiction to form its own opinion, tentative or otherwise.
4. I have gone through the several documents appended with these criminal revisions, with assistance of the learned counsel for the parties, in the light of their respective submissions.
5. Now as to the said first contention of the learned counsel for the petitioners that the petitioner Sultan was never sent up for trial, find the same to be rather preposterous. As sought to be explained by the learned counsel himself, in the first instance incomplete challan was submitted.
Now in this challan (Annexure F) Sultan Surkhoru is clearly mentioned in Column No.2 thereof. The said supplementary challan Annexure-E was sent later after completing the investigation and since by that time Nigha Muhammad had also been investigated or interrogated, his name was mentioned in Column No.2 of the said challan. To my mind both the documents Annexures E and F are to be read together and since Sultan had already been mentioned in Column No.2 of Annexure F there was no need to mention his name again in Column No.2 of Annexure E alongwith Nigha Muhammad and two others. There is of course no denial that the said first challan/report was sent up by the learned Magistrate to the learned Court if Session alongwith said second supplementary challan. There is thus no force in the said contention and is accordingly rejected. The said second contention of the learned-counsel that the petitioner could not have been summoned without recording evidence or that they have been mechanically summoned stands fully answered in the said case of Waqur-ul-Haq. (1988 SCM R 1428) where the summoning of the accused persons placed in Column No.2, who had in fact been got discharged from the learned Magistrate, by the learned A.S.J. On the sole ground that they stand implicated in the offence, was upheld by the Hon'ble Supreme Court. So far as the said contention regarding violation of section 204(1), Cr.P.C. Is concerned. I find that the same has also been raised in oblivion of contents of the impugned order and of Courts without considering admitted fact that summons were issued. The learned A.S.J. Has clearly noted "I feel it proper to summon them for trial", and it is an admitted fact that the summons were issued. Nothing turns on the contention that the accused persons mentioned in Column No.2 is not an accused person in the light of the said judgment of the Hon'ble Supreme Court being relied upon by the learned counsel for the complainant. As to the said last contention, the same is wholly I misconceived. In the first instance the discharge of an accused does not have the effect of his acquittal. The police can always commence further proceedings and learned Court holding trial is not bound by the said order, in the second, section 169, Cr.P.C. Clearly provides for a situation where the accused person is in the custody of the Police Officer. It authorises the Police Officer to release him in the circumstances mentioned in section 169, Cr.P.C. However, by no stretch of imagination can it be said that the said section 169 confers judicial powers on any Police Officer. No other point has been urged. Both the criminal revisions are dismissed.