The facts of the case are that a case under section 302/34, P.P.C. Was registered in Police Station Sarai Mughal, District Kasur vide F.I.R. No. 243 of 2001 against four unknown persons for the murder of Rana Muhammad Wakil. Challan in this case was submitted against Allah Ditta alias Bholi, who was placed in Column No.3 of report under section 173, Cr.P.C. While Haji Muhammad Akram was placed in Column No. 2 of the challan. As far as present petitioner Rana Jamshes Ali is concerned, he was neither named in Column No.2 nor in Column No.3 of the challan.
2. Learned counsel for the petitioner submits that the petitioner was named in the F.I.R. Like other two co-accused. He was implicated falsely by the complainant in his supplementary statement which was recorded two months after the occurrence i.e. On 17-12-2001 while the F.I.R. Was registered on 10-10-2001. Allah Ditta alias Bholi accused was arrested in this case. Presence of Haji Akram was not found at the spot nor any abetment was proved against him but' Ahmad Saeed, S.I./S.H.O. Added the offence under section 109, P.P.C. Rana Jamshed Ali petitioner was found innocent and his innocence was verified by the DSP, Pattoki. Thereafter the investigation of the case was transferred to the Range Crime, Lahore. Haji Akram was also found innocent and the same fact was verified by the DSP Aftab Ijaz who had also agreed with the investigation of Muhammad Hayat, Inspector Range Crime, Lahore. Recovery was also effected from Allah Ditta, Ramzan alias Mani Mirasi and Shafique alias Shafiqi were declared to be P.O. Petitioner was neither placed in Column Nos.2 or 3 of the challan. Learned counsel submits that he was also not sent up by the learned Magistrate as required under section 190(3), Cr.P.C. Adds that the learned Sessions Judge without recording and evidence had summoned the petitioner which is violative of law laid down by this Court.
3. On the other hand learned A.A.-G assisted by the learned counsel for the complainant submits that though the petitioner was not named in the F. I. R. But he was implicated by the complainant in the supplementary statement recorded after two months of the occurrence. They submit that learned trial Judge had power to summon any person whose name figures during the investigation. They both have relied upon 2002 SCMR 63 titled as Safdar Ali v. Zafar Iqbal and 1985 SCMR 1314.
4. I have heard the learned counsel for the parties at a great length. In the instant case the case was registered against four --unknown persons while two of the accuses: namely Muhammad Shafique and Muhammad Ramzan alias Mani Mirasi are still at large. Haji Muhammad Akram has been placed in Column No.2 of the challan while Allah Ditta has been placed in Column No.3 of the challan. The name of the present petitioner does not figure either in Column No.2 or in Column No.3 of the challan. He was also not named in the F.I.R. Now the prosecution has spread the net were by extending the number of accused from 4 to 5. He was implicated by the complainant two months after the occurrence in his supplementary statement. He was not sent up for trial by the learned Magistrate to the Court of learned Sessions, Judge. Learned Additional Sessions Judge has summoned the petitioner without recording any evidence whatsoever on the record. Reliance is placed on PLD 1986 Lahore 256 titled as Muhammad Ibraheem v. Qudrat Ullah Ruddy and others, in which Mr. Rustam S. Sidhwa, J. (late) had come to the conclusion that an accused person discharged by the police cannot be summoned unless the evidence of an eye-witness is recorded by the learned trial Court including the cross--examination on the said witness and thereafter if the learned trial Court comes to the conclusion that there is sufficient material on the record against the said accused then the learned trial Court had a right to summon that accused which is totally lacking in the instant case. Judgment relied upon by the learned A.A.-G. i.e. 2002 SCMR 63, is totally in--applicable in this case having different facts and circumstances of the case. In the instant case i.e. 2002 SCMR 63 the accused was placed in Column No.2 and the learned trial Court had summoned him. There is no cavil to this preposition while circumstances and facts of the present case are totally different.
5. After having heard the learned counsel for the parties and also going through the judgments cited by both the parties, I am of the view that the order passed by the learned trial Court is not legal one and the same is set aside. However, the learned trial Court after recording the evidence of any of the eye-witness including the cross-examination on the said witness comes to the conclusion that there is sufficient material against the accused then he will have a right under the law to summon the accused. With these observations this petition stands disposed of.