' This criminal revision petition is directed by the petitioners against judgment and order dated 25- 9-2002 passed by learned Additional Sessions Judge, Khushab whereby he set aside judgment dated 22-7-2002 passed by learned Magistrate Ist Class, Khushab.
2. Facts in brief are that petitioners were challaned to face trial for offences under sections 148/186/353/506/149, P.P.C. One Sardar, co-accused of the petitioners was given a clean/ slate by the police during course of investigation and his name was placed in Column No.2 of the challan sheet. Neither the complainant moved application before the trial Court that Sardar be summoned and tried nor the prosecutor placed such a request before the trial Court. The trial Court did not summon him as an accused. On culmination of trial the learned Magistrate found the petitioners guilty of the various charges and proceeded to convict them in the following manner: ' UNDER SECTION 148, P.P.C.
' To undergo rigorous imprisonment for three months each.
' UNDER SECTION 186, P.P.C.
' To undergo rigorous imprisonment for one month each.
' UNDER SECTION 353, P.P.C.
' To undergo rigorous imprisonment for six months each.
' UNDER SECTION 506, P.P.C.
' To undergo rigorous imprisonment for one year each.
3. Confronted with the situation, petitioner approached the Court of learned Additional Sessions Judge, Khushab who after perusing the record and hearing learned counsel for the appellants and State observed the witnesses had consistently named Sardar as a participant of the occurrence but was not summoned by the trial Court although it was its duty. He set aside the impugned judgment and remanded the case to the trial Court for fresh trial of the petitioners along with Sardar.
4. Learned counsel for the petitioners submits that petitioners have already faced agony of protracted trial and order passed by learned Additional Sessions Judge, Khushab will add to their agony and miseries, so judgments' of both the Courts below be set aside.
5. Learned counsel for the State submits that she is not in a position to support judgment and order of learned Additional Sessions Judge, Khushab.
6. I have considered arguments advanced by learned counsel for the petitioners and perused the judgment. Sardar after undergoing rigorous of investigation was declared innocent. His name was entered in Column No.2 of the challan sheet. The trial Court after taking cognizance of the matter did not feel the necessity of summoning Sardar to face trial. Even the complainant did not make an application requesting the Court to summon him as an accused for his trial in accordance with law. No such application was ever brought forward by the State. The learned Magistrate convicted the petitioners for various offences as aforementioned. During hearings of the appeal learned Additional Sessions Judge set aside judgment of the trial Court and ordered fresh trial of the petitioners. He also directed the trial Court to hold the trial of Sardar. I am of the firm view that Sardar has been condemned unheard which is in utter disregard of a famous principle of law "audi alteram partem" which means that no person should be condemned unheard. None had approached the learned Additional Sessions Judge with the request that grave injustice had occasioned by non-summoning of Sardar for trial purposes. He of his own without affording an opportunity of being heard has ordered his trial. In this way a principle of natural justice has been violated. A notice was required to be served upon him. Judgment does not show in any manner that such notice was issued and served upon him. So order being illegal is set aside.
7. As regard petitioners, their appeal against conviction was pending wherein extreme haste judgment of the learned Magistrate was set aside just for the sake of A Sardar. It was not ever heard or decided on merits. This order is set aside with the direction that their appeal shall be deemed to be pending before the learned Additional Sessions Judge, Khushab which should be heard and decided strictly on merits and this disposes of this revision petition.