Through this petition under section 561-A, Cr. P.0 . Petitioners have challenged the order dated 3-5- 2000 passed by learned Magistrate 1st Class, Multan whereby he has disagreed with the cancellation report and also the order dated 5-5-2000 passed by learned Additional Sessions Judge, Multan by which he summoned the petitioners to face the trial in case F.I.R. No.176, dated 24- 10-1999 under sections 302/147/149, P.P.C. At Police Station Pak Gate, Multan registered on the statement of Naseer Ali, complainant.
2. The brief allegation mentioned in the F.I.R. Is that the petitioners had committed the murder of Munir Ali brother of the complainant on 24-10-1999 at 11-30 a.m. With fist blows etc. After thorough investigation conducted by different police officers the police came to the definite conclusion that the petitioners were innocent as the allegation against them was found false and fabricated, which was also not supported by the medical evidence and cancellation report was submitted before the Magistrate but he disagreed with the said report through the impugned order dated 3-5-2000 and directed for submission of challan in the court, whereafter the learned Additional Sessions Judge had summoned the petitioners to face the trial.
3. Learned counsel for the petitioners contends that the order passed by the Ilaqa Magistrate was without jurisdiction as he had exceeded his jurisdiction while exercising the powers. It is further contended that he could not issue direction for supply of the list of the witnesses and names of the accused but only could have forwarded the same report to learned Sessions Judge if did not agree with the police. Further contends that learned Additional Sessions Judge has passed the impugned order dated 5-5-2000 while summoning the petitioners to face the trial in a murder case without applying his mind that whether there was any incriminating evidence against them on the record and it was judicial order, which is not sustainable in the eye of law. Learned counsel .Has contended that the learned trial Court is fully empowered to acquit the accused at any stage of the case under section 265-K, Cr.P.C. If there is no probability of the accused being convicted of any offence. Learned counsel has also contended that according to the medical evidence the deceased died natural death and keeping in view this aspect the initiation of trial will be sheer wastage of time.
4. On the other hand, learned counsel for the complainant opposes this petition on the ground that learned Additional Sessions Judge has applied his mind and has summoned the petitioners to face the trial in a murder case as there is sufficient evidence available on the record in the shape of ocular account to connect them with the commission of the crime.
5. I have heard the learned counsel for the parties and also gone through the impugned orders.
6. As regards order dated 3-5-2000 passed by the learned Magistrate it is conceded that it is an executive order. Undeniably, the learned Magistrate is fully competent to agree or disagree with the police report. Hence, it cannot be said that the order passed by .Him was without jurisdiction.
However, the same is not binding on the trial Court which can form any opinion without being influenced by the same.
7. As far as orders dated 5-5-2000 passed by the learned Additional Sessions Judge, Multan is concerned, I am of the view that without applying his mind and considering or discussing the evidence collected by the police during investigation the petitioners were summoned. I am in agreement with the learned counsel for the petitioners that the accused cannot be compelled to undergo the agony of trial if there is no incriminating evidence against him on the record to connect with the commission of crime, as he will not be compensated in any manner if is subsequently acquitted after undergoing the agony of trial. In this view of the matter the order dated 5-5-2000 is set aside. I have intentionally not commented upon the contentions of the learned counsel for the parties or the evidence on merits so that it may not prejudice the case of either party and left it at the trial Court to pass fresh orders regarding summoning of the accused as it being in possession of the police record will be in a better position to appreciate the same. The learned Additional Sessions Judge, Multan is directed to pass fresh orders after hearing both the parties, who will appear before him on 15-1-2004, without being influenced by the order of the learned Magistrate.
' The petition is partly accepted.