2007 PLP 3185 (YLR)

SH. HAKIM ALI, J.

Facts briefly stated in the instant petition and narrated by the learned counsel are that respondent No.4, Syed Muhammad Anwar Javed, had got an F.I.R. No.380 of 2003 registered with Police. Station Baghdad-ul-Jadeed, under sections 452/379/148/149 of the P.P.C., in which he had nominated Muhammad Rafique, Ata Muhammad, Sh. Aziz-ur-Rehtnan, Abdul Qadir and Liaqat Ali along with others 15/16 unknown persons, who had allegedly stolen 200 Maunds of cotton crop of the .informant, i.e. Syed Anwar Javed. The case was investigated by the Police, but no theft was found to have been committed, so a cancellation report was forwarded by .the Police, to the learned Illaqa Magistrate for its approval.

2. Grievance of the petitioner is that' cancellation report was not approved by the learned Illaqa Magistrate, but he had summoned the petitioner as an accused, although he was not entered and shown as an accused into that cancellation report: As per learned counsel, in summoning order even, passed by the learned Illaqa Magistrate, the name of petitioner, Muhammad Saleem-ul-Hassan was not included. In orders dated 30-4-2005 & 28-9-2005, same position was repeated and the name of the petitioner was not noted but afterward .the name of the petitioner was inserted in orders dated 29-3-2005 and 28-10-2005 without conscious application of mind, by the learned .Magistrate to the facts of the case. Criminal revision was filed against these orders before learned Addl. Session Judge but that was dismissed on 6-12-2005, so the instant petition has been filed against those summoning and upholding orders, of Muhammad Saleem- ul-Hassan.

3. Syed Anwar Javed, respondent No.4/informant, has also been heard. According to him, the name of the petitioner was included in the. list of 15/16 unknown persons and that he had informed this fact to the Investigating Officer, on 6-11-2003 that the name of petitioner was included in the list of unknown persons .but the Investigating Officer in the report submitted by him before the learned Magistrate had not noted in the cancellation report. Learned A.A.G., has not supported the summoning order passed by the learned Illaqa Magistrate.

4. After considering the arguments of both the' learned counsel as well as the informant, and the perusal of the record, I have found that summoning order of Muhammad Saleem-ul-Hassan, the petitioner has not been passed upon any conscious application of legal mind to the facts and circumstances of the case. In the cancellation report and in the F.I.R., the name of the petitioner was not entered. Even in orders dated 30-4-2005 and 28-9-2005, the position was the same. The legal way to act for the learned Magistrate was to record the statement of informant and a few of his witnesses and then to pass order upon the material, brought on the record. Without legal application of mind to the facts and circumstances and the material, the summoning order of Muhammad Saleem-ul-Hassan, the petitioner, could not be passed by the learned Magistrate. So the impugned orders are declared illegal and unlawful.

5. However, this order shall not be a bar for the learned Ilaqa Magistrate, if any material, is brought on the record by the informant and: if after application of legal mind, he finds the summoning of the petitioner, to be necessary and in accordance with law, he may in that event, pass an appropriate legal order. With the above observations, the instant petition is accepted. H.B:T/M-430/L Petition allowed.