2002 P Cr (PLP)

This criminal miscellaneous under section 561‑A, Cr.P.C. for the quashment of order, dated 25‑10‑2000, passed by Additional Sessions Judge, Bahawalpur, has been filed, wherein, the learned Judge has issued the process to the petitioners to face trial.

2. Facts giving rise to the present petition are that a case F.I.R. No.267 of 1998 under sections 11/10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979, had been registered at Police Station Musafirkhana. The police after investigation of the case, submitted challan against one Muhammad Sajid son of Muhammad Iqbal, to the Court. During the recording of statement of Mst. Zareena, she nominated the present petitioners on account of which, Liaqat Ali Khan the, Special Public Prosecutor, filed an application for summoning the present petitioners which was accepted by the trial Court vide the impugned order, dated 25‑10‑2000.

3. Learned counsel for the petitioners contended that the petitioners had not been nominated in the F.I.R. neither they were associated by the Investigating Officers and no evidence has been collected against them. He further contended that the petitioners were not challaned in any column of the challan form. He lastly contended that the trial Court without applying the judicious mind and on mere request of the prosecution has summoned the petitioners. He relied on cases of Mirza Muhammad Abbas v. The State PLD 1964 Lah. 7, Haji Muhammad Aslam Khan v. Muhammad Aslam and another 1990 SCMR 211, S: Akhtar Sher v. The State 1991 MLD 1977, Jan Muhammad v. Bashir and 3 others 1969 PCr.LJ 794, Haji Muhammad Aslam v. The State 1986 PCr.LJ 1442, Muhammad Yasin v. Abdur Rahim and another 1968 PCr.LJ 429, Ali Muhammad and others v. Muhammad Anwar and others 1990 PCr.LJ 1549 and Shaukat Ali and 2 others v. The State 1995 PCr. LJ 1749.

4. The arguments of learned counsel for the petitioners have been vehemently opposed by the learned State Counsel contending that the prosecutrix‑‑‑the complainant had deposed against the petitioners and the Court has ample powers to summon such accused persons.

5. I have heard the arguments of learned counsel for the parties and perused the record.

6. There is no cavil with the fact that the petitioners were not nominated in the F.I.R. Only one accused Sajid son of Muhammad Iqbal had been nominated alongwith two unknown persons. Four Police Officers investigated the case and in all the four investigations, no evidence had been produced by the prosecution against the present petitioners., therefore, they were not challaned by the police, neither, their case was put at the mercy of the Court in Column No.2 of the challan form. No doubt, the Court has ample power to summon an accused person against whom some material is available and Court is convinced that the accused is involved in the commission of offence. In the instant case there is no evidence on the judicial file of the Court against the petitioners, neither, the police was able to collect evidence against them. Mst. Zareena complainant has for the first time, named the petitioners in examination‑in‑chief and on her deposition, the prosecution filed an application for issuance of process against the petitioners and the Court has summoned the petitioners except the deposition of the complainant who kept mum before the Investigating Officers and said nothing against the petitioners at the stage of investigations The complainant was not cross‑examined and without cross‑examination the Court believed her and summoned the accused‑petitioners. Cross‑examination is essential for the discovery of truth and when opportunity for cross‑examination is not provided the testimony would be inadmissible. Except the examination‑in‑chief of the complainant, no other evidence has been produced by the prosecution and the Court has not adverted to this legal aspect of the case and without applying its judicious mind, summoned the petitioners. The Court has to look, at the material available with the police had produced by the prosecution in the Court and if sufficient evidence for involvement of the petitioners in the commission of offence is available on record, the Court is competent to summon such persons to face trial. The case in hand is not covered within the above‑referred requirement of law.

7. For the foregoing reasons, this petition is accepted and f the order, dated 25‑10‑2000, passed by the Additional Sessions Judge, Bahawalpur, summoning the petitioners is set aside. However, if after recording of the whole prosecution evidence, the Court is of the opinion that sufficient evidence for involvement of the petitioners in the commission of offence is available on the record, this order will not bar the Court for resummoning the petitioners to face trial. J.A.M./M‑942/L Order accordingly.