P LD 1993 Lahore 105 (PLP)

MIAN NAZIR AKHTAR, J.-Through this Constitutional petition the petitioner has assailed the order dated 1-12-1992 passed by the learned Additional Sessions Judge, and the subsequent acts of the Court treating the petitioner as an accused person, as being without lawful authority and of no legal effect.

2. Briefly stated the facts of the case are that on a report lodged by Muhammad Saeed complainant a case was registered against the petitioner and others vide F.I.R. No.376 dated 16-&1992 at P.S. Sadar GuJranwala for commission of offence under section 302/324, Qisas and Diyat Ordinance, sections 148/149 of the P.P.C. During the course of investigation the police found the petitioner to be innocent and placed his name under column No.2 of the challan. After completion of the investigation, the challan was forwarded to the Sessions Court through the Magistrate, First Class, Gujranwala. The learned Magistrate passed an order on 20-8-1991 for sending the challan to the Sessions Court and for issuance of Robkar for 'appearance of the petitioner before the Sessions Court. The accused persons including the petitioner were produced before the learned Sessions Judge on 2-9-1992 in police custody. The case was adjourned for 8-9-1992 when. the learned Sessions Judge entrusted it to the Additional Sessions Judge for disposal. The case was fixed for hearing on 9-9-1992 and was adjourned for 30-9-1992 by the Additional Sessions Judge for further proceedings. The accused persons sought a few adjournments for engaging some counsel and thereafter on 1-12-1992, copies of the statements of P.Ws. recorded under section 161 of the Cr.P.C. were delivered to them and the case was adjourned for 21-12-1992 for framing of the charge. The order dated 1-12-1992 reads as under:-- This order has been assailed in the instant case

3. The petitioner's learned counsel mainly urged that the petitioner' is not an accused person as he was not challaned,and his name was placed under column No.2 of the challan. Therefore, the trial Court could not either summon or treat him as an accused person without passing a conscious. order to summon him as an accused. According.to the learned counsel this could have been done only after some evidence had been recorded by the Court, prima facie showing involvement of the yetitioner in the commission of the offence. In support of his contentions he placed reliance on the following judgments:-- (1) Muhammad Ilyas v. Ijaz Alimad Butt and others 1992 SCMR 1857. (2) S. Akhtar Sher v. The State etc. 1991 MLD 1977. (3) Khalid Iqbal v. The State 1991 PCr.L.J 443, (4) Allah Ditta v. State 1991 PCr.LJ 663.

4. On the other hand, the learned A.A.-G. urged that the petitioner remains an accused person notwithstanding the fact that his name figures in column No.2 of the challan. He adds that the petitioner was neither discharged nor the case against him cancelled by the Court. Even the accused person against whom the discharge order is passed can be summoned by the trial Court without recording evidence. He submits that the trial Court, if it so desires, can discharge or acquit him under section 265-K of the Cr.P.C. However, as long as it is not done, the petitioner has to be tried alongwith others. He placed reliance on the following judgments:-- (1) Waqar-ul-Haq alias Nithoo and another v. The State 1988 SCMR 1428. (2) Muhammad Haneef and another v.. State 1979 PCr.1J 1078. (3) Raja Khushbakhtur Rehman and another v. State 1985 SCMR 1314. (4) Ajmal Ali Shah v. The State 1992 PCr.IJ 708. (5) Waqar-ul-Haq alias Mithoo and another v. The State PLD 1988 Lah 336.

5. There is considerable force in the arguments raised by the learned AA.-G. Column No.2 of the challan pertains to the names of those accused persons who have not been challaned by the police for purpose of trial. Due to lack of evidence against an accused the Investigating Officer may treat him as an innocent person and release him on bail on his executing bonds with or without sureties to appear before a Magistrate empowered to take cognizance of the offence as and when so required. According to the complainant the petitioner had joined the co-accused while being armed with a 7-MM Rifle and had fired at the complainant party (after two real brothers of the complainant were injured as a result of shots fired by Abdul, Iftikhar and Sarfraz co accused). Despite the findings of innocence recorded by the police, no move was made to have the petitioner discharged and the. cast against him cancelled. Therefore, the petitioner remained as accused 'person . in the case for purpose of trial. The judgment in. the case of Muhammad Ilyas relied upon.by the petitioner's learned counsel is distinguishable because in that case the trial Court had not taken any steps to show that Ijaz Ahmad Butt (who. was found to be innocent by the police) wag being treated as an accused by the trial Court. Therefore, it was observed that he was not an accused person and was allowed bail. However, in the present case the Trial Court has taken steps to treat the 1 petitioner as an accused person. Had the case against the petitioner been cancelled by the order of a competent Court, then the argument of the petitioner's learned counsel that without considering the material on the record or recording some evidence, he could not have been summoned to face trial. would have carried weight. If an accused person is found to be innocent by the police, he is not, ipso facto, taken out of the array of the accused persons. In the case of Waqar-ul-Haq relied upon by the learned AA.-G. the Hon'ble Supreme Court was pleased to hold as under:-- "The point involved in this case is that three persons have been accused of the offence out of which one Muhammad Rafique was placed in column No.3, whereas the present petitioners were placed in column No.2. The accused person whose name appeared in column No.3 of the challan can be summoned by the trial Court directly to stand the trial and it is not necessary that first some evidence should be recorded. In the present case the challan against the petitioners had not been cancelled by placing them in column No.2. It only meant that according to the police investigation they were found innocent, and therefore, they were discharged under section 63 of the Cr.P.C. However, it does not mean that they could not be summoned to stand trial by the Sessions Court." In the case of Raja Khusbakht-ur-Rahman, the Hon'ble Supreme Court was pleased to hold as under:-- "The arguments addressed by the learned counsel in fact showed that he laboured under the impression that cognizance is to be taken of an offender but that is not the law. Under section 190(3), Cr.P.c. the 01 Magistrate takes cognizance of an offence and not of an offender. He takes cognizance of the case as a whole and not qua only some of the accused found by the police to be implicated in the case." The view expressed in Waqar-ul-Haqs case was recently followed in the case of Allah Ditta etc. v. The State (W.P. No.9834/1992) relied upon by the learned A. A.-G. The relevant portion of the judgment is reproduced as under:-- "it is contended by the learned counsel for the petitioners that unless discharge order is reversed, the trial Court has no jurisdiction to summon the Intitioners. 16 view of the dictum laid down in Waqar-ul- Haq alias Nithoo and another v. The State (1988 SCMR 1428), nothing substantial is proved in favour of the discharge of the petitioners, and there is no clog on the powers of the trial Court to summon the present petitioners to face trial. The order of the trial Court is just and proper. The petition has no merit and is dismissed." The judgment in the case of S. Akhtar Sher relied upon by the petitioner's learned counsel is distinguishable on facts. In the said case a complaint was filed against Abdul Rashid, Abdul Aziz and Akhtar Sher petitioner for dishonest removal of scrap. After inquiry under section 202 of the Cr.P.C. it was recommended that proceedings against Akhtar Sher be dropped. It appears that the matter was reported against Abdul Rashid and Abdul Aziz and challan was prepared by the police and case sent up for trial to the Sessions Court against them. The District Attorney submitted an application before the trial Court for summoning Akhtar Sher accused as well. The application was accepted at a stage when there was no material whatsoever to show that Akhtar Sher was in any manner involved in the alleged theft. In this background it was held that the order for summoning the accused was rather hasty and was struck down with the following observation: "No doubt if during trial, reasonable material is brought on record, Court has a plenary jurisdiction to summon the petitioner." Obviously the view expressed in Akhtar Sher's case proceeds on its peculiar and distinguishable facts. In Allah Ditta's case 1991 PCr.LJ 663 an accused person was found to be innocent and got discharged. He was summoned by the Court on an application filed by the complainant before the commencement of the trial. The trial Court refused to summon him for the reason that the accused was found to be innocent, he was not present at the spot, only a Lalkara was attributed to him and he was discharged by the Ilaqa Magistrate. The said order was set aside because it was passed by the trial Court merely on the opinion of the police without considering the other material on record. The judgment in the case clearly indicates that the accused found to be innocent and discharged by the Court can be summoned without recording any evidence, after considering the F.I.R. the statements recorded under section 161 of the Cr.P.C. the plea raised by the accused and the evidence produced in support of the same during the investigation and the police opinion. Khalid lqbal's case relied upon by the petitioner's learned counsel heeds no elaborate discussion because while dealing with the Criminal Appeal of Khalid lqbal appellant only an obiter was made qua the case of Shafique Hussain, the acquitted co-accused. For the foregoing discussion. I find no merit in this petition which is dismissed. M.B.A./R-69/1,