2012 P Cr (PLP)

RAUF AHMAD SHEIKH, J.

The petitioner has challenged the vires of order dated 16-9-2010 passed by learned Judicial Magistrate Ist Class, Kabirwala, whereby an application filed by him with the prayer that respondents Nos.3 and 4 be summoned to face the trial in case F.I.R. No.104 of 2006 dated 5-5-2006 Police Station Abdul Hakeem under sections 324/148/149, P.P.C. was dismissed and order dated 28-2-2011 passed by learned Additional Sessions Judge, Kabirwala, whereby the revision petition filed by him also met the same fate.

2. The petitioner has alleged that on 4-5-2006 at about 7-00 p.m. Talib Hussain armed with Rifle .7 MM, Muhammad Muslim armed with Danda, Imran armed with Danda, Abdul Khaliq armed with Danda and Muhammad Aslam armed with Danda made an attack on him and his sister's son Liaqat Ali, who were going on Hospital Road, Abdul Hakeem. Allegedly Talib Hussain made fire on Liaqat Ali but luckily it did not hit him. Thereafter Muhammad Muslim gave a blow with Danda on head of Liaqat Ali and Imran respondent also gave a blow with Danda on his head; whereas Abdul Khaliq respondent gave a blow on his forehead and mouth and Muhammad Aslam gave a blow on his arm. After investigation Talib Hussain, Muhammad Saleem, Muhammad Aslam and Muhammad Muslim alias Bhuri were sent up to face trial, whereas respondents Nos.3 and 4 were declared innocent and placed in Column No.2 of the report under section 173, Cr.P.C. The petitioner submitted an application contending therein that both of them had played active role in the occurrence and specific injuries were attributed so they be summoned to face the trial. This petition did not find favour from the learned trial court and the revision petition preferred by him was also dismissed by the learned Additional Sessions Judge.

3. The learned counsel for the petitioner has contended that the learned trial court and the learned Additional Sessions Judge both have failed to perform their duties in accordance with law by declining the prayer to summon the respondents as sufficient material was available on the record to connect them with the commission of offence. It is urged that the report of the Investigating Officer was not binding on the courts and they should have applied independent mind as they have vast powers in this regard. In support of the contentions raised reliance is placed on "Falak Sher and another v. The State" (PLD 1967 SC 425) and "Muhammad Yaqub v. The State" (PLD 1998 Lahore 523).

4. The perusal of the record reveals that the local police and RIB after successive investigation held that respondents Nos.3 and 4 were innocent and not connected with the commission of the offence. It is true that the report of the police was not binding on the courts and that the trial court and the learned Additional Sessions Judge could have passed the orders for issuance of the process even without recording the evidence if it appeared from the material appended with the report under section 173, Cr.P.C. that they were connected with the commission of the offence. The Magistrate has the power in such eventuality to take cognizance under section 190(b), Cr.P.C. and issue process against the persons placed in Column No.2 of the report under section 173, Cr.P.C. but it is not obligatory and necessary that in every case the process must be issued and such persons invariably be summoned. The case-law cited at the bar by the learned counsel for the petitioner does not lay down that every person placed in Column No.2 should be summoned. Both the courts below had held that during the period of almost four years, after framing of the charge, the petitioner did not raise any grievance regarding placing of respondents Nos.3 and 4 in Column No.2 and did not make prayer for issuance of process against them. The learned Additional Sessions Judge rightly observed that the opinion of the police is not binding on the courts but the same cannot be ignored straightaway if it is based on cogent reasons. An efficacious remedy in form of private complaint was available to the petitioner and he could have availed of the same, if so desired. The impugned orders do not suffer from any illegality and infirmity. An order passed by the court of competent jurisdiction and upheld by the revisional court should not be normally interfered with in exercise of writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The writ petition is without merits and is hereby dismissed in limine. M.W.A./M-285/L Petition dismissed.