P L D 1983 Lahore 71 (PLP)

This judgment will dispose of Criminal Revision (Cr. R. 76 of 1981) filed by Mst. Sheedan and two others, petitioners against the order dated 30-11-1980 passed by Mian Abdul Rahman, Additional Sessions Judge, Kasur, in Sessions Case No. 128 and proceedings arising out of suo :otu issued by this Court to the aforesaid three petitioners on 18-2-1981 for setting aside of the order of the same Additional Sessions Judge dated 8-2-1979 passed in the said Sessions case.

2. The brief facts of the case are that on. 23-4-1978, F.

1. R. No. 108 of 1975 was registered at Police Station Pattoki under sections 3(12/307%148/1=t

9. P. P. C. against Mst. Sheedan, Zubaida and Muhammad Aslam, tire present three petitioners in Criminal Revision No. 76 of 1981, and Muhammad Hussain, Muhammad Hassan and Muhammad Sharif; their co-accused. After investigation, the local Police found the present three petitioners as innocent and placed their names in column No. 2 of the challan, which was filed before the Resident Magistrate, Chunian, on 19-5-1975. The Resident Magistrate recorded the evidence of two witnesses in commitment proceedings. With the coming into force of the Law Reforms Ordinance, 1972, in December, 1 75, the case was sent up to the Sessions against Muhammad Hussain, Muhammad Hassan and Muhammad Sharif, co-accused. In January 1979, the case was marked to Mehr Muhammad Nawaz, Additional Sessions Judge, Kasur, who summoned both the three tie-accused and the present three petitioners under section 204, Cr. P. C to face their trial. On 1-2-1979, the three petitioners filed an application under section 265-K, Cr. P. C. urging that they be acquitted at the Court had no jurisdiction to proceed against them because their narn Ps werc never sent up by the Magistrate under section 190 (3), Cr. P. C. to face trial. In the meantime, the case was transferred to the Court of Mian Abdul Rehman, Additional Sessions Judge, Kasur, wbo took charge -;f the: ea.,e. On 8-2-1979, the said Additional Sessions Judge, Kasur, withdrew the carlter order passed by his predecessor summoning the ` three petitioners to face trial and set them at liberty. Para. 3 of the order of the learned Additional Sessions Judge, which gives the reasons for his finding in the said connection, is reproduced below for facility of reference :-. "No doubt under the amended law this Court can take cognizance under section 193, Cr. P. C. only when the case has been sent up by the Magistrate. The learned counsel for the petitioners has cited P L D 1977 Lab. 535 which laid down that under the amended law the Court of Sessions cannot take the cognizance unless the case has been sent up by the Magistrate under section 90 (3), Cr. P. C. He has also relied upon 1977 P. Cr. L J

948. In this authority it was held that the accused shown in column No. 2, could not be compelled to attend the Court because they had not been sent up for trial and the issuance of process by the Magistrate against them was held illegal. Therefore, Mst. Sheedan, Mst. Zubaida and Muhammad Aslam having been placed in column No. 2 by the police and not having been sent up for trial to this Court by the Magistrate could not be tried by this Court. Therefore, the earlier order of summoning the three accused is hereby withdrawn and they are set at liberty if not required in any other case. The case against the remaining would come up for trial on 20-2-1979 already fixed." Mian Abdul Rahman, Additional Sessions Judge, then framed the charge against three co-accused on 20-2-1979, after supplying the necessary copies of the documents to them. On 30-I1-1980, the Court proceeded to record the prosecution evidence and after recording the evidence of Chand (complainant) P. W. 1, the Additional Sessions Judge felt that a prima facie case existed against the said three petitioners and passed an order summoning them as accused persons to face their trial. Being aggrieved by the said order, the three petitioners preferred a revision petition (Crl. R. 76 of 1981) against the same before this Court, which was admitted on 11-2-1981. During arguments on I8-2-1981, the learned Assistant Advocate-General pointed out to this Court that the earlier order of the Additional Sessions Judge dated 8-2-1979 was illegal and contrary to the law declared by this Court. Accordingly. Mr. Justice Aftab Farrukh, in exercise of his powers under section 439, Cr. P. C., issued notice to the petitioners on 18-2-1981 as to why the order dated 8-2-1979 be not set aside. Both the revisions petition filed by the petitioners and the proceedings arising out of suo motu notice issued by this Court on 18-2-1981 to the petitioners, are now before me for disposal.

3. Learned counsel for the petitioners, in support of his petition, has submitted that suo motu proceedings, which were initiated by this Court on the request of the State through its - Assistant Advocate-General, were incompetent under section 439 (5), C:. P. C., as the State, which had the right of preferring an appeal against the impugned order dated 8-2-1979, had not so preferred an appeal. Learned counsel further submitted that summonses against the petitioners having been withdrawn by the Additional Sessions Judge on 8-2-1979, further proceedings taken against them on 30-11-1980 under section 204, Cr. P. C. amounted to their fresh prosecution for the same offences, which was legally barred. In this connection learned counsel referred to Mul Singh v. Emperor (1). Emperor v. Pritam Sirgh (2), Abul Hossain Sana v. Suwalal Agarwala (3), Dr. Muhammad Bashir v. The State (4), Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and two others (5) and Muhammad Anwar Khan v. The State (6). Learned counsel also contended that the order passed by the learned Additional Sessions Judge on 8-2-1979 under section 265-K, Cr. P. C. amounted to the acquittal of the petitioners and section 403, Cr. P. C. prevented their retrial. Lastly, learned counsel also relied upon Muhammad Aslam and others v. Mst. Natho Bibi (7) and Mst. Jamil and others v. The State (8). which cases were relied upon by the learned (1) 24 Cr. L J 433 (2) A I R 1948 Cal. 128 (3) P L D 1962 S C 242 (4) P L D 1971 S C 447 (7) P L D 1977 Lab, 535 8) 977 P Cr,L .1948 Additional Sessions Judge in support of his order dated 8-2-1979, to preserve and protect the said order against this Court's sun motu interference under section 439, Cr. P. C.

4. The learned Assistant Advocate-General, who appeared for the State. strongly opposed the revision petition filed by the petitioners and pressed for the setting aside of the trial Judge's order dated 8-2-1979. The learned counsel for the State submitted that the bar as contemplated in section 439 (5) Cr. P. C. did not apply to the instant case, as the State had not preferred any revision before the High Court, but the High Court itself, in exercise of its revisional jurisdiction under section 439 (1), Cr. P. C., had issued the show cause notice to the petitioners for the setting aside of the Additional Sessions Judge's order dated 8-2-1979. Learned counsel also submitted that the impugned order dated 30-11-1980 passed by the Additional Sessions Judge summoning the three petitioners to face their trial did not amount to a fresh prosecution of the petitioners for the same offences, if the earlier order dated 8-2-1979 passed by the same Additional Sessions Judge was held to be illegal and passed contrary to the law declared by this Court in Muhammad Haneef's case (1) and Muhammad Ishaq's case (2), Learned counsel also submitted that the order dated 8 -2-1979 passed by the Additional Sessions Judge was not an order passed under section 265-K, Cr. P. C. acquitting the petitioners, nor was there anything in the said order to give any indication that the petitioners had been so acquitted. Lastly, learned counsel submitted that the two cases relied upon by the learned Additional Sessions Judge for seeking support for his order dated 8-1-1979, were not properly interpreted and, in any case, they did not deal with the legal issues before him. 5. 1 have given my anxious consideration to this case. It cannot be denied that the order dated 8-2-1979 passed by the learned Additional Sessions Judge is contrary to the law declared by this Court in Muhammad Haneef's case and Muhammad Ishaq's case. Learned Additional Sessions Judge relied upon Muhammad Aslam and others v. Natho Bib! for taking the view that the Court of Sessions could not take congnizance of murder case unless the case was senti up to it by the Magistrate under section 190(3), Cr. P. C. The instant case was sent up by the Resident Magistrate to the Sessions under section 190 (3), Cr. P. C. Irrespective of the fact whether the case was so sent up against the three co-accused only, the Additional Sessions Judge had the power, on the A basis of the law declared in Muhammad Haneef's4case. to summon the three petitioners whose names had been placed in column No. 2 of the challan. Such a power was exercised by Mehr Muhammad Niwaz, Additional Sessious Judge, Kasur, which action was legal and correct. The learned Additional Sessions Judge's exception to the same is not understood. The learned Additional Sessions Judge also relied upon Mst. Jamil and others v. The State to hold that the accused, whose names were shown in column No. 2, could not be compelled to attend the Court, because they bad not been sent up for trial and the issuance of process against them was illegal. With due respect to the learned Additional Sessions Judge, the said ruling does not lay down the said ratio at all. Rather, ruling deals with cases of absconders, whose names are shown in column No. 2, against whom process have to be 'issued to compel their attendance in Court. Not only has the learned Additional Sessions Judge failed to apply the law declared by this Court in Muhammad Haneef's case and Mahammad lshaq's case, but by misinterpreting two rulings of this Court, had held that the three petitioners, whose names had been placed in column No. 2 of the challan by the police and who were not sent up for trial (1) 1979 P Cr. L J 1078 (2) 1979 P Cr. L J Note 96 at p. 63 by the Resident Magistrate, could not be tried by him. In short, the order, which is based on legal grounds alone, is based on a total misapprehension of the law. The said decision being contrary to the law declared, is illegal and perverse and deserves to be set aside.

6. This now leaves me with the other objections raised by the learned counsel for the petitioners. - As regards the submission that the sun motu proceedings initiated by this Court under its revisional powers should be treated as a notice issued on a revision petition filed by the State, to which the bar of subsection (5) of section 439 of the Code should be deemed to be applicable, I must confess that I cannot accept such a submission. Suo mot notice was issued by Mr. Justice Aftab Farrukh on 18-2-1981 on the basi of information which came to his knowledge during arguments. In thes circumstances, the bar contemplated by subsection (5) of section 439 of the Code of Criminal Procedure does not apply to the instant case. As regards the next submission made by the learned counsel for the petitioners that the order dated 30-11-1980 passed by the learned Additional Sessions Judge amounts to fresh proceedings against the petitioners, the same has no force and must be rejected. Once the order dated 8-2-1979 is held to be illegal and set aside, the earlier order passed by Mehr Muhammad Niwaz, Additional Sessions Judge, Kasur, summoning the three co-accused and the three petitioners t face their trial under section 204, Cr. P. C. would hold the field. The furthe order dated 30-11-1980 summoning the three petitioners would only be a surplusage. However, since the charge against the three petitioners has to be drawn up and the Sessions case is still the same and no new challan has been filed against the petitioners, it cannot be said that any fresh prosecution has been initiated against the petitioners, to which the principle of autre fois acquit or autre fois convict applies. This principle does not apply till a prosecution has finally concluded and ended either in acquittal or conviction, which is not the case here. (See Alamdar Hussain Shah's case). As regards the further submission made by the learned counsel for the petitioners that the order dated 8-?.-1979 passed by the learned Additional Sessions Judge amounts to an acquittal of the petitioners under section 265-K, Cr. P. C., the same has no force. The learned trial Judge did not acquit the petitioners under section 265-K, Cr. P. C. nor did he say so in so many words. The language of the order also does not give any indication that the petitioners were acquitted. No request was made by the Public Prosecutor for their acquittal under section 494, Cr. P. C. and even assuming the same had been made, it would p have been turned down, as no charge had been framed against the petitioners and, at best, they could have been discharged under Part (a) of the said section. The order also does not discharge the petitioners on the basis of evidence recorded. Only a discharge do merits exnecessitae can be treated as an acquittal, to bar fresh proceedings. (See Abdul Hussain's case). This submission is, therefore, rejected.

7. The upshot of the above discussion is that the order dated 8-2-1979 passed by Mian Abdul Rahman, Additional Sessions Judge, is illegal, perverse, c and contrary to the law declared by this- Court and is, therefore, set aside. There being no merit in the revision petition (Crl. R. 76 of 1981) filed by the petitioners, the same is dismissed. s. A. a. Petition dismissed.