2004 PLP 772 (YLR)

The brief facts of the prosecution case are that the complainant Haji Muhammad Uris Lakhair (respondent No. 1) lodged his F.I.R. with Police Station Nao Goth wherein he has stated that there is dispute between the parties over the boundaries of the lands and the Faisla was made by their Nek mards namely Sardar Altaf Hussain and Wadero Khadim Hussain Lakhair. On the day of incident, his father was working in his land where Abdul Majeed, Muhammad Siddiqu, Atta Muhammad and Aijaza came at the land from their houses and abused him. The accused persons were armed with Sotas, pieces of bricks and they were causing injuries to his father. As per injuries, his father fell down and they raised cries in the name of Almighty Allah. Accused persons left the place of incident while abusing the complainant party. The complainant brought his injured father at Police Station and lodged the F.I.R. The police after usual investigation, submitted challan in Court of law where the names of the applicants were shown in Column No.2 of the challan. The complainant moved an application for joining of the applicants/accused in the trial Court, but it was dismissed by an order, dated 15-12-2001 by the learned Civil Judge and F.C.M., Mehar, as the trial Court rejected the application for joining them as an accused. The complainant filed a Criminal Revision No.3 of 2003 in the Court of learned Sessions Judge, Dadu, which was allowed with a direction to furnish the surety in the sum of Rs.10,000 each, as the concession of bail, was extended. The applicants have challenged the said order by filing this application with a prayer that the order, dated 10-7-2003 passed in Criminal Revision No. 3 of 2002 be quashed. Mr. Ali Nawaz Ghanghro, learned counsel for the applicants has contended that the impugned order is liable to be quashed, as during the investigation the name of applicants were shown in Column No.2 of the challan, as there was insufficient evidence. It is further urged by the learned counsel that the learned trial Court had passed correct and proper order, as there was no fresh material available against the applicants to join them as an accused. In support of his proposition, he relied upon the case of Inayatullah v. State (1999 PCr.LJ 731). Mr. Muhammad Bachal Tonyo, learned Addl. A.-G. has supported the impugned order passed by the learned Sessions Judge, Dadu for joining the applicants as an accused to face the trial before the trial Court. Mr. Tonyo has relied upon unreported judgment of Hon'ble Supreme Court of Pakistan passed in Criminal Petition No. 105-K of 2002 (Shah Murad and others v. State) delivered on 11-12-2002 as the Hon'ble apex Court while deciding the appeal from the order, dated 3-9-2002 has observed that the trial Court is not bound by the police report submitted under the provisions of sections 173 and 190, Cr.P.C. Mr. Muhammad Saleem JN Jessar, learned counsel for respondent No.1 has opposed this application that the impugned order has been passed after considering the prosecution case, Mr. Jessar has relied upon the case of Muhammad Sharif v. State (1997 SCMR 304, Safdar Ali v. Zafar Iqbal (2002 SCMR 63). I have heard Mr. Ali Nawaz Ghanghro, learned counsel for the applicants, Mr. Muhammad Bachal Tonyo, learned Addl. A.-G. and Mr. Muhammad Saleem JN Jessar, learned counsel on behalf of respondent No.1. The provisions of sections 173 and 190, Cr.P.C. are the required provisions in which the report is to be filed by the Investigating Officer in the trial Court for taking the cognizance of the offence on such report the trial Court is supposed to inspect the result of the report. This wisdom is based in order to check/restraint and censorship on the police working. A bare reading of the F.I.R. and the material, it has been disclosed by the prosecution in respect of the commission of an offence punishable under section 337 A(i), 337-A (ii), 337-L and 504, P.P.C. and upon accepting the charge-sheet by the area Magistrate after taking the cognizance of offence under clause (a) of subsection (1) of section 190, Cr.P.C. which is triable by the Court having jurisdiction. Indeed the trial Court is competent to call or to summon any person and to join as an accused during the trial. Such power is to be exercised when there is sufficient, material connecting such persons in the alleged offence. As per F.I.R. the complainant has named the applicants and other co-accused for, causing the injuries to his father (injured Haji Ali). The trial Court did not consider the prosecution case and only examined the defence version furnished by the applicants before the Investigating Officer, as they were let off by the police. The respondent No. 1 challenged the order of the trial Court through Criminal Revision No. 3 of 2002 and after hearing the learned counsel for the respective parties, the learned Sessions Judge, Dadu by an order, dated 10-7-2003 allowed the criminal revision application. It will be advantageous to reproduce herein-below the order passed by learned Sessions Judge, Dadu:-- "I have given deep consideration to the arguments advanced by both the sides and at this prima facie stage when the case has not produced and the material before this Court is the police papers an apparent implication of the opponents surfaces at this stage inasmuch as the opponents are named in F.I.R. and the injuries caused to P.W. Haji Ali were three in number letting off three opponents and keeping one accused to face trial seems to me a pick and choose exercise of the powers of the investigating agency under section 497(2), Cr.P.C. whereby three of the opponents were released and one is challaned. In such circumstances, the persons released by the investigating agency and shown in Column No.2 of the challan are ordered to be joined/impleaded as accused and since they were on bail by the police they are hereby allowed extended concession of bail, subject to furnishing of surety in the sum of Rs. 10,000 each in the trial Court." Mr. Ali Nawaz Ghanghro, learned counsel while arguing the Criminal Application No.44 of 2003 in which the process Was not issued by the trial Court and the application was also dismissed for non-joining the respondents/accused to face the trial has taken divergent view that the trial Court has to record the evidence then process can be issued by relying upon the case of Inayatullah v. State reported in 1999 PCr.LJ 731 which was relied by the learned revisional Court in Criminal Miscellaneous Application No.44 of 2003. The learned counsel for the applicants can argue his divergent view, but it is to be seen by the Court whether the divergent views can be argued on the fact of law, but Court has to consider that the divergent view can be considered on the point of law. The Hon'ble Apex Court in the following cases has dilated the point involved in respect of joining of the accused and report furnished by the Investigating Officer:-- (1) Falak Sher v. State (PLD 1967 SC 425); (2) Muhammad Akbar v, State (1972 SCMR 335); (3) Saeed Muhammad Shah v. State (1993 SCMR 550); (4) Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain (1986 SCMR 1736); (5) Khusbakhtur Rehman v. State (1985 SCMR 1314); (6) Muhammad Hanif v. State (1979 PCr.LJ 1078); (7) Nur Illahi v. State (PLD 1966 SC 708); (8) Waqarul Haq alias Nithoo v. State (1988 SCMR 1428) and (9) Muhammad Sharif v. State (1997 SCMR 304). It is also obligatory upon the trial Court to dilate upon each and every aspect of the matter, which falls within the jurisdiction of the trial Court while taking the cognizance of an offence and by summoning the required accused to face the trial, who was placed in Column No.2. There is no legal bar whatsoever that at first instance evidence should be recorded to ascertain as to whether prima facie case is made out against the accused/culprits. In view of the dicta laid down in the above cited judgments, the trial Court while passing the order has lost his sight in respect of issuance of process, which was set aside by the learned Sessions Judge with a direction that let off accused by the police during investigation to be impleaded/joined as accused upon furnishing solvent surety. The order passed by the learned Sessions Judge is based on proper appreciation of prosecution case and there is no illegality or infirmity in the impugned order for joining the applicants as an accused to face the trial regarding the allegations contained in the prosecution case. There is no substance in this matter to interfere with the impugned order. Resultantly, Criminal Miscellaneous Application No.75 of 2003 is dismissed and the order passed by the learned Sessions Judge, Dadu is maintained. N.H.Q./M-4/K Petition dismissed.