2001 PLP 387 (YLR)

The present applicants being aggrieved and dissatisfied by the impugned order, dated 22-6-2000 passed by the learned IInd Additional Sessions Judge, Larkana have preferred this present Criminal Revision Application. Brief facts of the case are that the aforementioned applicants have been included as accused in Sessions Case No.326 of 1998 title (State v. Ghulam Hussain and others) for an offence under sections 302, 34, 114; P.P.C. and 13(d), Arms Ordinance on the application filed by complainant Haji Muneer alias Munawar under section 193, Cr.P.C. and have been called to face trial with the co accused. Hence this Criminal Revision. During the course of investigation, it appears that police found aforementioned applicants innocent and their names were placed in Column No.2 of the challan sheet while main accused Niaz Hussain was sent to face the trial. An application under section 193, Cr.P.C. is said to have been moved by complainant Haji Muneer alias Munawar before the Trial Court for joining the applicants as accused to face the trial alongwith co-accused Niaz Hussain. Learned counsel for the applicants has argued that no evidence has been adduced by the prosecution and the present applicants were found innocent and were placed in Column No.2 of the challan sheet and without adducing any evidence from the side of the prosecution the present applicants have been joined as accused alongwith main accused Niaz Hussain to face the trial. He has further contended that from the material available on .the record there is no prima facie case against the applicants to join them as co-accused by the Trial Court. He has placed reliance on two unreported decisions of this Court being Criminal Revision Application No. 19 of 1998, dated 22-12-1998 and Criminal Revision Application No.24 of 1998, dated 31-5-1999. On the other hand Mr. Abdul Haq Solangi, learned Advocate for the complainant has supported the impugned order passed by the learned IInd Additional Sessions Judge, Larkana and has placed reliance on a case of Waqarul Haq alias Nithoo and another v. State reported in 1988 SCMR 1428. Mr. Gul Hassan Solangi learned Advocate for the State has supported the contentions raised by Mr. Muhammad Ayaz Soomro learned Advocate for the applicants. I have heard the learned counsel for the parties and have gone through the impugned order and other material available on the record. Admittedly, the aforementioned applicants during the course of investigation were found innocent and have been placed in Column No.2 of the challan sheet and thereafter, no fresh evidence has been brought, by the prosecution to connect the present applicants with the. alleged offence. The aforementioned applicants are not accused persons insofar as their names were not included in the column of the accused persons, but appeared in Column No.2 of the challan because Investigating Agency was short of material against them. Neither police had taken any steps to arrest the 'aforementioned applicants because for doing so police had to show sufficient material available against them and their names for that reason were to be taken outs from Column No.2 and put in column of the accused persons who are not in custody nor the Trial Court had taken any steps to show that they were being treated as accused persons. Law cited by the learned counsel for the complainant reported in 1988 SCMR 1428 the Honourable Supreme Court wherein has held that discharge of accused under section 63, Cr.P.C.

Effect of

Accused under section 302/34, P.P.C. found innocent by police investigations, placed in Column No.2 and discharged by Illaqa Magistrate-- Sessions Court's order summoning them for Trial, impugned

Plea raised that accused petitioners could not be mechanically summoned by Sessions Court unless first evidence was recorded and in the light of such evidence Trial Court deemed it proper to summon them

Held, challan against petitioners had not been cancelled by placing them in Column No.2, it only meant that according to police investigation they were found innocent and, therefore, they were discharged under section 63, Cr.P.C. which did not mean that they could not be summoned to stand trial

Petition being without substance, leave to appeal refused." The facts of the present case are different from the aforementioned cited law by the learned counsel for the complainant. There is no cavil of law. Admittedly the applicants have been placed in Column No.2 and no fresh evidence has been brought by the prosecution and until and unless the fresh evidence is brought by the prosecution summoning of the aforementioned applicants by the Trial Court is riot warranted by law as still the prosecution is short of evidence against the present applicants as they have been placed in Column No.2 of the challan sheet it has been admitted by the learned counsel for the complainant that no fresh evidence has been brought by the prosecution and on application moved by the complainant under section 193, Cr.P.C. for joining the aforementioned applicants, they have been included in the case as co-accused. Reference can be made to a case of Muhammad Ilyas v. Ijaz Ahmed Butt and another reported in 1992 SCMR 1857-1858 wherein the Honourable Supreme Court held that the accused was not an accused person so far as his name was not included in the challan in the Column of accused persons but appears in Column No.2: of the challan because Investigating Agency was short of material against him. Neither police have taken any steps to arrest him because for doing so police has to show that sufficient material is available against him and his name for that reason is to be taken out from Column No.2 and put in the Column of accused persons who are not in custody, nor the Trial Court has taken any steps to show that respondent No.1 was being treated as accused person. Admittedly there is no fresh evidence to take out the name of the aforementioned applicants from the Column No.2 and put their names in Column of the accused persons I am being fortified by the aforementioned authority of the Honourable Supreme Court and accordingly, I "set aside the impugned order and allow this criminal revision application. However, the Trial Court would be at liberty", to include the aforementioned applicants as co-accused in the case after some evidence is adduced by the prosecution. Criminal Revision stands allowed. H.B.T./G-46/K Revision allowed.