1. ' This order will dispose of Crl. Revision No.262 of 2003 (filed against the order dated 27-1-2003 passed by learned Additional Sessions Judge-II, Choonian, District Kasur whereby Messrs Sajjad Ahmad, Ghulam Nabi and Abdul Sattar were given up by the Public Prosecutor), Crl. Revision No.263 of 2003 (filed against the order dated 29-3-2003 passed by the learned Additional Sessions Judge-II, Choonian, District Kasur), Crl. Revision No.264 of 2003 (filed against the order of said learned Additional Sessions Judge-II, Choonian, dated 29-3-2003) and Crl. Misc. No.82/T of 2003 (filed for the transfer of trial in challan case titled as State v. Muhammad Asghar and others from the Court of Malik Nazir Ahmad, learned Additional Sessions Judge to some other Court of competent jurisdiction) titled as Muhammad Asghar v. The State and others.
2. ' Brief facts of the case are that one Muhammad Rafique was murdered on 21-5-2000 at 5-00 a.m.
3. At the Dera of the present petitioner Muhammad Asghar, thereafter, case F.I.R. No.326 of 2000, dated 21-5-2000 was registered with Police Station Choonian, District Kasur under sections 302/109/148/149, P. P.0 . Against Ahmad Khan, Mehmood Ahmad, Muhammad Hanif, Jameel Ahmad, Noor Muhammad, Din Muhammad, Muhammad Iqbal, Javed, Irshad Bashir and 5/6 unknown persons. The witnesses in the said F.I.R. Were Muhammad Asghar (present petitioner), Ghulam Nabi, Abdul Sattar, Sajjad, Salamat and Zulfiqar. On 25-5-2000 Mst. Saffia mother of Muhammad Rafique deceased submitted an application to A.S.P. Choonian and the learned Judicial Magistrate that in fact the murderers of her son Muhammad Rafique are Shaukat Ali, Muhammad Asghar (present petitioner), Irshad, Abdul Razzaq, Muhammad Siddique, Rasheed, Abdul Wahid, Sajjad, Abdul Sattar, Mukhtar, Ghulam Nabi, Zulfiqar, Ashraf, Munha, Iqbal and Bilal.
4. The witnesses in the said complaint which was submitted to the A.S.P. Choonian were Saffia Bibi (mother of the deceased), Muhammad Siddique, Muhammad Zafar and Muhammad Ishaq. Both these matters were investigated by the police and police came to the conclusion that in fact it was a case of cross-firing in which Muhammad Rafique died but it could not come to light during investigation that who was the responsible for the murder of Muhammad Rafique deceased.
5. According to police investigation Muhammad Hussain, (P.O.) Riaz, Sultan, Asghar Ali son of Bashir Ahmad, (P.O.) Ali Ahmad (P.O.) and Ahmad Khan were the accused for the murder of Muhammad Rafique. Police also came to the conclusion that Muhammad. Asghar (present petitioner) was accused of abetment while from the other side that's, adverse party, Mukhtar Ahmad, Atta Muhammad (P.O.) Abdul Wahid (P.O.), Abdul Aziz and Aslam (P.O.) were made as an accused. On 12-3-2002 Mst. Saffia Bibi mother of the deceased filed a complaint under sections 302/324/148/109, P.P.C. Against those persons who were mentioned as an accused in the application submitted by Mst. Saffia Bibi to A.S.P. Choonian. On the other hand, Muhammad Asghar (present petitioner) filed a complaint but later on, he withdrew the same. The complaint filed by Mst. Saffia Bibi was sent to the learned Judicial Magistrate for inquiry under section 202, Cr.P.C. Who after recording the statements of the eye-witnesses came to the conclusion that according to his opinion, only Muhammad Asghar (present petitioner), Shaukat Ali, Abdul Razzaq, Irshad and Mushtaq are the accused for the murder of Muhammad Rafique but the learned Additional Sessions Judge did not agree with the report of learned Magistrate and summoned all the accused persons who, were named by Mst. Saffia Bibi in her complaint because learned Additional Sessions Judge was of the view that Mst. Saffia Bibi had made a statement against all the accused persons and three P.Ws. Had corroborated the statement of Mst. Saffia Bibi, thereafter, learned trial Court started the proceedings in the challan case in which Muhammad Asghar (present petitioner) was the first informant. On 27-1-2003, three witnesses, namely, Sajjad Ahmad, Ghulam Nabi and Abdul Sattar were given up who are eye-witnesses in the said F.I.R. By the learned Public Prosecutor as having been won over.
6. Learned counsel for the petitioner submits that learned Public Prosecutor has no right to give up those . Witnesses as mentioned above because the complainant/ first informant has not asked or instructed the said learned Public Prosecutor to give up those witnesses and there was no material on record to the state that the above-said witnesses were won over by the accused party. In this regard, he has relied upon PLD 1979 Lahore 740 and 1981 SCMR 294. He further submits that one of the accused, namely, Noor Samand who is practicing lawyer at Choonian has used his influence, that both challan case which was on the basis of F.I.R. Lodged by Muhammad Asghar (present petitioner) and the complaint case filed by Saffia Bibi should be proceeded separately because witnesses in both the cases are different and in the complaint case Muhammad Asghar (present petitioner) cannot be convicted. He has relied upon 1968 PCr.LJ 1935, 1970 PCr.LJ 133, 1981 PCr.LJ 879, 1983 PCr.LJ 760, PLD 1986 SC 737, MLD 1988 Lahore 2393 and PLD 2003 Lahore 71. He has also submitted an application for the transfer of case from the said learned Additional Sessions Judge because according u him the said learned Additional Sessions Judge has made Muhammad Asghar (present petitioner) as an accused of abetment in this case and it has prejudiced the case of the petitioner. He further submits that the said learned Additional Sessions Judge after framing the charge under section 109, P.P.C. Against the petitioner Muhammad Asghar also A summoned the petitioner under section 302, P.P.C. And that petitioner does not expect fair and impartial trial from the hands of said learned Additional Sessions Judge.
7. ' On the other hand, learned Additional k-G. Assisted by learned counsel for Mst. Saffia Bibi respondent submits that as far as given up of the three witnesses by the learned Public Prosecutor, namely, Sajjad Ahmad, Glnilam Nabi and Abdul Sattar are concerned, that order be set, aside and the order be passed by this Court directing the learned Additional Sessions Judge to follow the principle laid down in PLD 1966 SC 708. Learned Additional A.-G. Further submits that inquiry report was not binding on the learned Additional Sessions Judge who had summoned all the accused who were mentioned by Mst. Saffia Bibi, in the complaint filed' by her I have heard learned counsel for the parties and have also gone through the impugned orders filed by Muhammad Asghar (present petitioner).. Either side has not denied that Muhammad Rafique deceased was the real son of Mst. Saffia Bibi, she is the most aggrieved person, she firstly submitted an application to A.S.P. Choonian, then, she was not satisfied with the police investigation, she filed a complaint, though Inquiry Magistrate was of the view after recording the preliminary evidence that only five accused should be summoned but the learned Additional Sessions Judge after going through the statements of the witnesses, which were recorded' during preliminary inquiry summoned all the accused persons who were mentioned in the complaint filed by Mst. Saffia.
8. First of all after hearing the parties I set aside the order dated 27-1-2003 passed by learned Additional Sessions Judge in Crl. Revision No.262 of 2003 for allowing the application of the learned Public Prosecutor for giving up three witnesses of Muhammad Asghar (present petitioner) namely, Sajjad Ahmad, Abdul Sattar and Ghulam Nabi.
9. ' Now the trial will be conducted on the following lines while following the principle laid down in PLD 1966 SC 708 titled as Noor Elahi v. The State. First of all, the learned trial Court will record the statements of the witnesses in the complaint case filed by Mst. Saffia Bibi mother of Muhammad Rafique, deceased, thereafter, he would summon the witnesses of the challan case who were on the basis of F.I.R. Lodged by Muhammad Asghar complainant (present petitioner) and their statements would be recorded as C.Ws. And both the parties will get the right to cross-examine those witnesses. It was not binding on the learned Additional Sessions Judge to have acted while closing his eyes on the report which was submitted by the learned Inquiry ` Magistrate under section 202, Cr.P.C. The learned Additional Sessions Judge while summoning the accused persons in the complaint case filed by Mst. Saffia mother of Muhammad Rafique deceased had stated that statement of Mst. Saffia Bibi is fully corroborated by the statements of other witnesses. Prima facie he could have summoned those accused persons, who are mentioned in the complaint filed by Mst. Saffia Bibi and in this regard, he has not committed any illegality in this case. As far as, transfer of the case from the Court of said learned Additional Sessions Judge is concerned, there is no need of transfer of case from the Court of said learned Additional Sessions Judge, who had summoned the accused persons, to the other Court of competent jurisdiction. With these observations, all the above noted petitions stand disposed of.