1997 PLP 1745 (MLD)

Muhammad Aslam Niazi for Respondent No.

2. In this criminal revision petition the order dated 10-9-1996 passed by learned Additional Sessions Judge, Sargodha, whereby he rejected the application of the petitioner under section 265-K, Cr.P.C. and framed the charge against him, has been challenged.

2. Brief facts are that F.I.R. No. 105/93, dated 20-4-1993, under section 302/34/109, P.P.C. was registered at Police Station City Mianwali against the petitioner and his two sons, namely, Farman Ullah and Mata Ullah on the allegation of murdering Umar Hayat. In the first investigation conducted by the local police, Hamid Ullah, accused/petitioner and his son Mata Ullah were found innocent and their discharge was recommended. However, before the discharge order from the Illaqa Magistrate was obtained the case was reinvestigated by Shaukat Ali, Inspector, who declared all the three accused persons including the petitioner guilty in the case. Accordingly incomplete challan was submitted to the learned Sessions Court. On the application of the petitioner the Inspector-General of Police ordered reinvestigation under the supervision of D.I.G., Sargodha, which in turn got the case reinvestigated under the supervision of S.P. Range Crimes, Sargodha. The petitioner and his son Mata Ullah were again declared innocent. But in another investigation carried by D.S.P., C.I.A., Mianwali, the three accused were again found guilty.

3. The petitioner filed W.P.No.15104 of 1994 to challenge the submission of challan against the petitioner and his son Mata Ullah on the plea that they were found innocent during two investigations and were recommended to be discharged. This writ petition was disposed of by me on 15-1-1995 with the following direction:

"Let both the reports of investigations be also placed before the learned trial Court, which shall thereafter, frame the charge and proceed in the case in accordance with law.

4. The trial was transferred to the Court of Mian Jalal-ud-Din Akbar, learned Additional Sessions Judge, Sargodha, to whom application under section 265-K, Cr.P.C. was submitted by the present petitioner on 9-4-1996 for his own discharge and that of his son, Mata Ullah. This application was resisted by the complainant and the State. The learned trial Court rejected the same vide the impugned order dated 10-9-1996, observing as follows:

"In the present case the accused-petitioner was challaned to Court by the local police. Statements of two witnesses, namely, Ahmad Khan and Muhammad Hayat were recorded by police under section 161, Cr.P.C wherein the abovementioned witnesses have levelled the allegation; against the accused-petitioner for abetment. In my considered opinion if the statements of the abovesaid two witnesses are presumed to be true then it cannot be said that prosecution has no evidence against Hamid Ullah accused-petitioner. Resultantly the present petition under section 265-K, Cr.P.C is being dismissed being devoid of any force."

5. Learned counsel for the petitioner raised two main contentions; one that the petitioner and his son, Mata Ullah, having been exonerated from the charge by two different Investigating Officers and their discharge recommended by them, they could not be made to stand trial; and the second that the statements recorded under section 161, Cr.P.C. being not legal evidence could not form basis for the conviction, therefore, charge could also not be framed on the same evidence.

6. It is the admitted position that the charge was framed on 10-9-1996 by the learned trial Court without having recorded any evidence itself. However, the learned trial Court has referred to the statements of two witnesses, Ahmad Khan and Muhammad Hayat, recorded under section 161, Cr.P.C. by the police during investigation and concluded that the prosecution could not be said to have no evidence against the applicants.

7. On the point that the statements recorded under section 161, Cr.P.C. is not substantive evidence and could not be made basis for the conviction, learned counsel for the petitioner relied on the reported judgments in the cases of "Haji Muhammad v. The State" PLD 1966 (W.P.) Lahore 344, "Nursratullah v. The State" 1995 MLD 1635 and "Amir Bux v. The state" 1990 PCr.LJ 1765.

8. There is no cavil with the proposition that the statements recorded' under section 161, Cr.P.C. by the police is not legal and substantive evidence and conviction cannot be based on the same, yet such statements can furnish basis for trial of the accused and for that purpose alone can be utilized by the prosecution.

9. In support of the contention that the petitioner and his son, Mata Ullah, having been recommended to be discharge, no charged could be framed against them and they could not be made to stand trial, learned counsel relied on "Bashir Ahmad v. Illaqa Magistrate" PLD 1980 Lahore 81, "Syed Hamid Muqeem Bokhary v. The State" PLD 1985 Lahore 71 and "Abdul Waheed v. The State" PLD 1986 Lahore

81. In these three precedent cases the emphasis was on the proposition that once an order of discharge is passed by the Magistrate on the basis of the discharge report of the Investigating Agency, he or the trial Court has no jurisdiction to summon such persons as accused, unless fresh evidence is brought on record.

10. In the present case no order of discharge was passed by the Illaqa Magistrate on the basis of the report of police under section 173, Cr.P.C., therefore, the rule laid down in these precedent cases, is not applicable to the present case. However, it is not disputed that by two different Investigating Officers, the petitioner and his son, Mata Ullah, were found innocent and their discharge from the case was recommended. This fact is also recorded in the impugned order in the following words:

"Application for getting Hamid Ullah present petitioner and Mata Ullah accused discharged from the case was submitted by S.H.O., Police Station City, Mianwali on 4-12-1993. It was forwarded by S.D.P.O. on 5-12-1993 at which D.S.P. Legal opined that as the challan against Hamid Ullah accused-petitioner and Mata Ullah accused had already been submitted in Court, hence the discharge application was not to be placed before any Court."

11. On the contrary the learned counsel for respondent No.2 complainant has relied on "Raja Khushbakhtur Rehman v. The State" 1985 SCMR 1314 and "Waqarul Haq alias Mithoo v. The State" PLD 1988 Lahore 336 in support of the contention that the accused even if discharged by the Magistrate could still be summoned by the learned trial Court to stand the trial. In the case of Raja Khushbakhtur Rehman the Hon'ble Supreme Court held as follows:

"As regards the power of the trial Court to summon the petitioners who had been placed in column No.2 learned counsel does not deny that the trial Court is possessed of such power. He contends that the trial Court had not taken proper note of the fact that the petitioners had been found guilty neither by the police nor by the Illaqa Magistrate to whom the case had been referred under section 202, Cr.P.C. The learned Judge in his order, dated 3-10-1978 has given reasons for summoning the petitioners. He had perused the record before him. His order summoning the petitioners thus suffers from no legal infirmity." In the case of Waqarul Haq this Court held that:- "Raja Khushbakhtur Rehman's case is, in my opinion, also authority for the view that for summoning an accused person whose name appears in column No.2 of the challan, it is not necessary for the learned trial Judge to record some evidence. "

12. Respectfully following the dictum of the Hon'ble Supreme Court in Raja Khushbakhtur Rehman's case, in my opinion the learned Additional Sessions Judge,' Sargodha, while rejecting the application of the petitioner under section 265-K, Cr.P.C. through the impugned order dated 10-9-1996 and framing the charge, has not committed any illegality. However, it is very clear that the learned trial Judge shall have to decide the case on the basis of legal evidence which is produced before him. This petition has thus no force and is accordingly dismissed. Needless to say that any observation made by me in this order or made by the learned trial Judge in the impugned order shall not affect the trial in any manner. N.H.Q./H/18/L Revision dismissed.