1. The applicant through this application under section 561-A, Cr.P.C., has challenged the order dated 23-8-2002 passed by the learned Extra Joint Civil Judge and F.C.M., Larkana and subsequent order dated 31-3-2003 passed by the learned Additional Sessions Judge, Ratodero, whereby the respondents No,1 to 5 were not joined as an accused to face the trial in Crime No,42 of 2001 of Police Station, Gerelo, District Larkana in a offence under section 337-A(i), 337-F(i), 337-H(ii), 147, 148, 504, 114, P.P.C. The brief facts of the prosecution case are that on 3-12-2001 complainant Ghulam Ali Brohi lodged his F.I.R., alleging therein that on the day of incident he was sitting in his house and he came out from his house on a call where the electric bulbs were flowing and on such electric light he has identified Khair Mohammad empty-handed, Allah Bux armed with gun, Mohammad Yousif armed with rifle, Ghulam Umar, Gulzar, Abdul Raheem, Ali Hassan, Mohammad Punhal, Ramzan and Mumtaz having lathies in their hands, asked him as to why he has occupied their plot, on which the complainant told him that since the case is pending adjudication before the Civil Court by saying so the accused Molvi Khair Mohammad became annoyed and instigated other accused to catch the complainant, on which the accused having lathies caused lathi blows to complainant on his forehead, nose and on the commotion P.Ws Ghulam Hussain and Mohammad Ramzan came there and intervened and tried to rescue the complainant, but the accused caused Lathi blows to them and then accused Allah Bux and Mohammad Yousif started firing from their guns, rifles in air and started abusing and therafter they went to their houses. The F.I.R of the incident was lodged and after usual investigation, the challan was filed, but the names of respondents Nos.1 to 5 were shown in Column No,2.The applicant/complainant moved an application under section 193, Cr.P.C., but it was dismissed on 23-8-2002 by the learned Extra Joint Civil Judge and F.C.M, Larkana. The impugned order passed by the learned ExtrA Joint Civil Judge and F.C.M, Larkana is reproduced in below:- "By this order, I shall dispose off above application filed by the Advocate for the complainant under section 193, Cr.P.C., for taking cognizance against the accused, Molvi Khair Mohammad, Abdul Rahim, Mohammad Yousif, Ghulam Umar and Gulzar. Heard learned Advocate for complainant, learned PSI for the State and perused the record and facts that section 193, Cr.P.C., is for taking cognizance of offence by the order of Sessions. Hence this application merits no consideration and rejected." The applicant being aggrieved with the said impugned order, preferred revision application in the Court of Sessions, Larkana, but it was transferred to the Additional Sessions Judge, Ratodero, who also disallowed the same on 31-3-2003. This application has been filed under section 561-A, Cr.P.C., for set asiding the both orders passed by the trial Court as well as by the revisional Court. Mr. Ali Nawaz Ghanghro, learned counsel for the applicant has contended that the impugned order passed by the learned trial Court is improper and it has been passed without applying judicial mind, as the prosecution version, the accused have participated in the commission of offence conjointly inflicted lathi blows to complainant Ghulam Ali, P.Ws Ghulam Hussain and Mohammad Nawaz and other co-accused participated while firing in air. The complainant and P.Ws have sustained numerous injuries and all accused are liable to face the trial, but the police have wrongly mentioned the names of respondents Nos.1 to 5 in Column No,2 of the charge sheet.
2. Mr. Ghanghro further contended that there is material evidence available against them and there is also counter case registered by the accused side, which has been charge sheeted and due to mala fide on the part of Investigating Officer and after accepting illegal gratification, they were released while the complainant and eye-witnesses have implicated them and has supported the prosecution case. It is further urged by the learned counsel that the view taken by the learned Additional Sessions Judge, Ratodero is not tenable. Mr. Ghanghro has relied upon a case of Safdar Ali v. Zafar Iqbal (2002 SCM R 63) and one unreported authority of Hon'ble apex Court in Criminal Petition No,105K of 2002 (Shah Murad and others v. State). Mr. Gul Hassan Solangi, learned State counsel has not supported the impugned orders passed by the trial Court as well as revisional Court. Mr.Mohammad Ashique Dhamraho, learned counsel for the respondents Nos.1 to 5 has vehemently opposed this application as the respondents were let of during the investigation as the I.O. Had examined defence witnesses namely Nazir Ahmed, Hafiz Mohammad Umar, Nisar Ali and Ali Hyder who have stated that the said respondents were present in the mosque of village on the day of alleged incident where they offered Nimaz and Taraweeh and have taken dinner and attended Mehfle Naat. The above witnesses had also sworn affidavits before the trial Court and the trial Court while dismissing the revision application has relied upon the case of Inayatullah v. State 1999 PCr.LJ 731. I have heard Mr. Ali Nawaz Ghanghro, learned counsel for the applicant, Mr. Mohammad Ashique Dhamraho learned counsel for respondents Nos.1 to 5 and Mr. Gul Hassan Solangi, learned counsel appearing on behalf of the State. The provision of section 173 and 190, Cr.P.C., are the required provisions in which the report is to be filed by the I.O. In the trial Court for taking the cognizance of the offence on such report the trial Court is supposed to inspect the result of the report. This wisdom is based in order to check/restraint and censorship on the police working. The protracted investigation of frequent transfer of investigation and non-submission of the challan required by law is one of the reasons that the law and order situation is worsening in the Province.
3. A bare reading of the F.I.R, it has been disclosed a prima facie commission of an offence punishable under section 337-A(i), 337-F(i), 337-H(ii), 147, 148, 504, P.P.C., and on accepting the challan of the area Magistrate after making the cognizance of offence under Clause (a) of subsection (1) of section 190, Cr.P.C., which is triable by the Court having jurisdiction. Indeed a trial Court is competent to call or to summon any person and to join as an accused during the trial.
4. Such power is to be exercised when there is sufficient material connecting such persons in" the alleged offence. As per F.I.R., Khair Mohammad was found empty-handed and Allah Bux armed with gun, Mohammad Yousif with rifle and other co-accused Ghulam Umar, Gulzar, Abdul Rahim, Ali Hassan, Mohammad Punhal, Ramzan and Mumtaz were armed with lathies and on the instigation of Molvi Khair Mohammad became annoyed and instigated other accused to got the complainant and the other co-accused armed with lathies inflicted the blows to complainant on forehead, nose and on the cries P.Ws Ghulam Hussain and Mohammad Ramzan reached at the place of incident who intervened and tried to rescue the complainant, but the co-accused armed with lathies caused lathi blows to him and at that time Allah Bux and Yousif fired from his gun and rifle in the air and abused the complainant party. There is no cavil to the proposition that the accused placed in Column No,2 of the challan cannot be summoned by the trial Court to face the trial and there is no legal bar whatsoever that at the first instance the evidence should be recorded to ascertain as to whether the prima facie case is made out against them. The view taken by the revisional Court is contrary to the facts and law, as there is no provision in Cr.P.C., that in such situation evidence should be recorded prior to summoning the said respondents whose names are admittedly placed in Column No,2 of the challan. The report of the police officer is not binding upon the Court when there is specific role played by each accused is mentioned in the F.I.R., as well as other evidence collected by the prosecution, therefore, it was incumbent upon the trial Court to have issue the process in respect of the respondents Nos.1 to 5. The trial Court has taken the cognizance of the whole but not on particular case. The trial Court as well as the revisional Court only considered the defence version and the affidavits sworn by the defence witnesses, but ignored the prosecution case for issuing the process against the persons whose names have been mentioned in the Column No,2 of the charge-sheet. In the following cases, the Hon'ble apex Court has resolved the point that the trial Court can summon the accused placed in Column No,2 of the challan as the accused have to face the trial and there is no legal bar whatsoever that at the first instance the evidence should be recorded to ascertain as to whether prima facie case is made out against them:
(1) Falak Sher v. State (PLD 1967 SC 425).
(2) Mohammad Akbar v. State (1972 SCM R 335).
(3) Saeed Mohammad Shah v. State (1993 SCM R 550).
(4) Raja Mohammad Afzal v. Ch. Mohammad Altaf Hussain (1986 SCM R 1736).
(5) Khushbakhtur Rehman v State (1985 SCM R 1314).
(6) Mohammad Hanif v. State (1979 P.Cr.L.J. 1078).
(7) Nur Illahi v. State (PLD 1966 SC 708).
(8) Waqarul Haq alias Nithoo v. State (1988 SCM R 1428).
(9) Muhammad Sharif v. State (1997 SCM R 304). In the above mentioned authorities, it has been held that the Magistrate is required to take the cognizance of such a matter to inquire into matter and to apply his mind where the allegations are correct or such allegations required by the trial before the Court of law. There is unreported order of Hon'ble apex Court in Criminal Petition No,105-K of 2002 in case of Shah Murad and others v. State, which was disposed of on 11-12-2002. The operative part of the above mentioned order is reproduced herein below:-- "There can be no cavil with the proposition that the trial Court is not bound by the police report submitted under the provisions of sections 173 and 190, Cr.P.C. In law it has ample powers to agree or to disagree with the information laid by the police and to discharge a person or to take cognizance of the crime against any person concerned with the commission of the crime whether sent -up or not.' Since the trial Court did not act without jurisdiction by summoning the petitioners, to this extent we are convinced that the order was rightly upheld by the High Court. There is, however, a grievance of the petitioners that in the first instance, it would always be proper and fair to issue summons or at least bailable warrants in order to secure the attendance of the petitioners who were not sent up."
5. As a result of above discussion, the application filed by the applicant is accepted and the orders dated 23-8-2002 and 31-3-2003 passed by the learned trial Court and revisional Court are set aside. The respondents Nos.1 to 5. Are directed to appear before the trial Court and furnish the surety in the sum of Rs, 50,000 each to the satisfaction of trial Court to face the trial as they were released during the investigation and their names were mentioned in Column No,2 of the challan.