2008 P Cr (PLP)

SYED HUSSAIN MAZHAR KALEEM, J.

Above titled revision petition is directed against the order of Tehsil Court of Criminal Jurisdiction, Samahni dated 31-7-2006, whereby petitioners and non-petitioner No.2 were summoned to face trial.

2. Brief facts forming background of the revision petition are that a case under sections 324, 337, 147, 148, 149, 447, 109, 506, A.P.C. was registered at Police Station, Chowki on the complaint of Abdul Qayyum. It was alleged that Khurshid son of Salah Muhammad, Muhammad Arshad alias Shada son of Muhammad Hussain, Javaid son of Muhammad Sharif and Waheed Akram son of Muhammad Akram armed with lethal weapons came at the place of occurrence. They fired at the complainant and prosecution witnesses and also pelted stones. P.W. Mahmood Hussain suffered twenty six pellets injuries at the hands of Khurshid son of Salah Muhammad. Waheed Akram was ascribed the role of hatching conspiracy while all the accused persons were also alleged for threatening the complainant party.

3. During investigation, the petitioners and non-petitioner No.2 were found innocent and they were extended benefit of section 169, Cr.P.C. and their names were placed in column 2 of the report filed under section 173, Cr.P.C.

4. After examination of the prosecution witnesses, the complainant moved an application before the trial Court stating therein that the petitioners and: non-petitioner No.2 played an active role in the occurrence. A strong prima facie case was existed against them. They were not entitled to benefit of section 169, Cr.P.C. In view of the fact that the prosecution witnesses ascribed them specific role in the occurrence, they may be summoned to face the trial for commission of the alleged offences. The trial Court allowed the application and summoned the petitioners and non-petitioner No.2 through the impugned order. Hence this revision petition.

5. Learned counsel for the petitioners argued that after investigation the petitioners and non-petitioner were given benefit of section 169, Cr.P.C. The trial Court agreed with the report under section 173, Cr.P.C. at the time of submission of challan. The proceedings under section 169, Cr.P.C. were not challenged by the complainant. According to the record presence of the petitioners at the place of occurrence at relevant time was not established by the complainant party while no evidence against non-petitioner No.2 was brought on record, thus after examination of the prosecution witnesses there was no lawful justification to summon the petitioner and non-petitioner No.2 to face trial, therefore, the impugned order being incorrect and against law may be set aside by accepting the revision petition.

6. On the other hand, it was argued that a strong prima facie case against the present petitioners and non-petitioner No.2 was present on record. The prosecution witnesses had ascribed them specific role of causing fire arm and blunt injuries while non-petitioner No.2 was alleged for threatening P. W Mahmood Hussain. He further argued that the Court was not bound to agree with the report submitted by the police and was competent to summon the accused persons even at a later stage, if in light of the evidence they were found involved with the offence, thus impugned order being correct and in accordance with law, needs no interference, therefore, the revision petition may be dismissed.

7. I have heard the learned counsel for the parties and gone through the record of the case.

8. It may be mentioned here that finding of the Investigating agency to place some accused persons in column No.2 by extending benefit of section 169, Cr.P.C. is not binding on the Courts and a trial Court has a legal competence under law to summon any accused if the prosecution evidence shows his involvement in the case. A Court can take cognizance of an offence even in the case where a report for cancellation is submitted by the Police. A Court while taking cognizance on a Police report takes cognizance of the offence but not of a particular person charged in the report as an offender. The trial Court can therefore, issue process against other accused persons who also appear to him to be connected with the offence on the basis of the material placed before him.

9. In the present case the prosecution witnesses involved the petitioners and non-petitioner No.2 in the commission of offence and in light of their statements the trial Court by giving very strong reasons summoned the petitioners and non-petitioner No.2 to face the trial.

10. In light of the facts listed above the revision petition being without any substance is hereby dismissed, however, to avoid any confusion before parting with the case I would like to mention that the Court shall proceed against them in accordance with law. In the meanwhile the case against the other accused persons shall remain in abeyance till the trial against the present petitioners and non-petitioner No.2 is completed, whereafter the case against all the accused persons shall be decided together. N.H.Q./43/Sh.C.(AJ&K) Revision dismissed.