Faiz Fareed, etc vs The State, etc

Through this criminal revision, the petitioner has called in question order dated 04.11.2015, delivered by learned Additional Sessions Judge, Khairpur Tamewali, District Bahawalpur, whereby he summoned the petitioners to face trial in case F.I.R. No. 230, dated 23.08.2015, offence under Section 302/34 P.P.C. Registered at Police Station Khaipru Tamewali.

2. Learned counsel for petitioners argued that order of summoning of petitioners dated 04.11.2015, delivered by the learned trial Court is arbitrary as the petitioners were declared innocent and that the learned trial court has not considered the report under Section 173 Cr.P.C submitted by the police in its true perspective. He has relied upon case law titled "Haji Mehboob Khan and another vs. The State" (2002 P. Cr.L.J 340) and prayed for setting aside the impugned order.

3. Having heard learned counsel for the petitioners and perusal of record, it reveals that in the instant case, petitioner No.1 Faiz Fareed and Muhammad Safdar with one unknown person were nominated in the F.I.R. Khan Muhammad petitioner No.2 was involved subsequently in this case through supplementary statement of the complainant. During investigation, petitioners were found innocent and their names were placed in column No.2 of the report under Section 173 of Cr.P.C.

While Muhammad Safdar accused was found guilty. After submission of report under Section 173 Cr.P.C, learned trial Court took cognizance of the matter and summoned both the petitioners to face trial in this case. In consequence, petitioners appeared before trial Court. Copies of relevant documents as required under Section 265-C Cr.P.C. Were delivered to the accused persons.

Charge was framed against them and prosecution evidence was summoned. During trial proceedings, on 12.12.2015, petitioners did not appear and they were summoned through bailable warrants of arrest for 16.12.2015 and then non-bailable warrants for 02.01.2016 were again issued. It is in this background that the petitioners have filed the instant criminal revision.

4. No doubt, once an accused has been declared innocent during the course of investigation and is placed in column No.2 of the challan, he cannot be treated as an accused unless and until trial court took cognizance and summoned him to face trial. It is also settled principle of law now that ipse dixit of police is not binding upon the Court. Reliance in this context may be placed on case law titled "Mudassar Altaf and another vs. The State" (2010 SCM R 1861) and Muhammad Abbasi vs. The State and another (2011 SCM R 1606.) According to the dictum laid down in case titled "Waqar- ul-Haq alias Nithoo and another v. The State" (1998 SCMR 1428) their Lordships of the Hon'ble Supreme Court of Pakistan had held that even the accused who have been found innocent and the police has discharged them, can be summoned to stand the trial because the case was not cancelled. In another Full Bench judgment reported as (1985 SCM R 1314) "Raja Khushbakhtur Rehman v. The State" it is held by the Apex Court that the accused placed in column No.2 of the challan can be summoned. Learned trial court has rightly used its power to summon the present petitioners under section 173 Cr. P.C. The citation referred to by learned counsel for the petitioners is not helpful to the petitioners as in referred case this court has set aside the impugned summoning order, as the trial court has summoned the accused placed in column No.2 of the report submitted under section 173 Cr. P.C, mechanically without making any reference to incriminating material available against them and without justifying the said order. The facts of the case are different to the case in hand. No interference is called for in this petition and the same is hereby dismissed in limine.