1999 PLP 2338 (YLR)

‑‑‑‑Ss. 200, 202, 204, 439 & 561‑A‑‑‑Penal Code (XLV of 1860), S. 302/109/148/149‑‑ Private complaint‑‑‑Summoning of accused ‑‑ Revisional jurisdiction, exercise of‑‑‑Trial Court after going through preliminary evidence available on record including statements of eye‑witnesses, had found a prima facie case established for summoning accused to face trial‑‑‑Inquiry Magistrate had also found, the same‑‑Discretion exercised by Trial Court, not suffering from jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning, would not warrant interference of High Court in exercise of its revisional jurisdiction. Malik Muhammad Akram Khan Awan for Petitioner. Criminal Miscellaneous No. l of 1999 Dispensation sought for is allowed, Disposed of. Criminal Revision No.385 of 1999

2. A gruesome blood‑bath took place in Chak No.80, South within the area of Police Station Bhagtan Wala, District Sargodha at 8.45 a.m. on 29‑8‑1998 wherein four persons including a principal of an educational institution were gunned down. F. I. R: No. 148 was lodged by Mazhar Abbas, respondent No.2 herein, against the present petitioners in that regard at Police Station Bhagtan Wala, District Sargodha at 8.55 a.m. on the same day. Subsequently' repeated investigations were held by the local police in that connection and ultimately the police came to a conclusion that the petitioners were innocent. Resultantly, a recommendation was made for discharge of the petitioners from the said case. Agreeing with the said recommendation the learned Special Judge, Anti‑Terrorism Court, Sargodha Division, Sargodha vide order, dated 19‑11‑1998 discharged the petitioners. Aggrieved with the partisan attitude shown by the local police in that respect Mazhar Abbas, respondent No.2 herein, filed a private complaint in respect of the said incident against the petitioners before the learned Ilaqa Magistrate on 8‑2‑1999. The said private complaint was sent up by the learned Magistrate to the learned Court of Session, Sargodha and the same was entrusted by the learned Sessions Judge, Sargodha to the learned Additional Sessions Judge‑I, Sargodha for further proceedings. Preliminary statement of the complainant was recorded by the learned Additional Sessions Judge‑I, Sargodha and thereafter, an inquiry was ordered by him in that respect to be conducted by a learned Judicial Magistrate Section 30, Sargodha under section 202, Cr.P.C. On 3‑3‑1999 the learned Judicial Magistrate Section 30, Sargodha, after recording the preliminary evidence of the complainant, submitted his report wherein he recommended summoning of all the petitioners to face a trial as, according to him, prima facie case had been made out against the petitioners in that regard. Vide order, dated 29‑4‑1999 the learned Additional Sessions Judge‑I, Sargodha summoned the petitioners to face a trial and this order has been assailed before this Court through the present revision petition.

3. I have heard the learned counsel for the petitioners at some length and have gone through the record of the case annexed with this petition.

4. It has been argued by the learned counsel for the petitioners that after repeated investigations the local police had found the petitioners to be innocent and resultantly the petitioners had been discharged from the case by the learned Special Judge, Anti‑Terrorism Court, Sargodha Division, Sargodha. According to the learned counsel for the petitioners this factor was not given sufficient weight by the learned Additional Sessions Judge while passing the impugned order of summoning the petitioners to face a trial. This argument of the learned counsel for the petitioners overlooks the settled legal position that an order of discharge does not amount to cancellation of a criminal case. An order of discharge only means that physical custody of an accused person is not required for the purposes of investigation for the present. It does not mean that the prosecution stands terminated or smothered. Regarding the meanings and scope of an order of discharge a reference may be made to the cases of Parul Bala Sen Gupta, Petitioner v. The State (AIR 1957 Calcutta 379), Bahadur and another v. The State and another (PLD 1985 Supreme Court 62) and Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others (1985 PCr.LJ 244). In this respect it may also be observed that an order of discharge is only an administrative order and the same cannot be utilized for blocking a judicial order of summoning of accused persons by a Court of law. I have also gone through the order of discharge passed by the learned Special Judge on 19‑11‑1998 which, on the face of it, is not a speaking order and the same proceeds on a mere recommendation of the police without disclosing any application of mind by the learned Special Judge. Apart from that entertain serious doubts as to whether the learned Special Judge, Anti‑Terrorism Court, Sargodha Division, Sargodha had any jurisdiction in the matter as the allegations levelled in the F.I.R. disclosed commission of the offence pursuant to a private revenge which per se took the matter out of the jurisdiction conferred under the Anti‑Terrorists Act, 1997. This was so held by the Honourable Supreme Court of Pakistan in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445).

5. It has also been argued by the learned counsel for the petitioners that the allegations levelled in the private complaint filed by respondent No.2 disclose use of a kalashnikov and, therefore, a learned Additional Sessions Judge did not have the requisite jurisdiction to try the case in hand as the facts alleged attracted application of Suppression of Terrorist Activities (Special Courts) Act, 1975 and, therefore, only a Special Court constituted under the said Act could take cognizance of the allegations levelled by the complainant. Suffice it to observe in this respect that this objection qua jurisdiction can always be taken by the petitioners before the learned Additional Sessions Judge and if such an objection is taken before him he shall be obliged to decide the same before proceeding further with the trial of tile petitioners. In this context I am mindful of the fact that in some districts of the Province of the Punjab Additional Sessions Judges have been vested with the powers of a Judge, Special Court constituted under tile abovementioned Act of 1975. The learned counsel for the petitioners has failed to place anything oil the record showing that tile learned Additional Sessions Judge‑I, Sargodha who had passed tile impugned order was not vested with such powers.

6. The main thrust of the arguments advanced by tile learned counsel for the petitioners has been on the opinion of the police regarding innocence of the petitioners. This argument (foes not call for any serious consideration as it has already been held by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Iqbal and others v. Muhammad Akram and another (1996 SCMR 908) that the opinion of the police regarding guilt or innocence of an accused person is irrelevant and inadmissible in evidence before a Court of law.

7. Four persons lost their lives in the incident in question. The learned trial Court, after going through the preliminary evidence available on the record including the statements of four eye‑witnesses, has found a prima facie case to have been established for summoning (lie petitioners to face a trial in that regard. The learned Inquiry Magistrate had also round the same. In this view of the matter the, discretion exercised by the learned Additional Sessions Judge‑I, Sargodha in this matter does not call for interference by this Court. Apart froth that no jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning has been pointed out by the learned counsel for tile petitioners so as to warrant an interference ill the matter by this Court in its revisional jurisdiction. Thus, finding no merit in this revision petition the same is hereby dismissed in limine. Criminal Miscellaneous No.2 of 1999

8. As the main revision petition has been dismissed in limine by this Court today, therefore, this application has lost its relevance. Dismissed. H.B.T./E‑20/L