MUHAMMAD YAQUB Versus THE STATE

This revision petition has been filed to set aside the impugned order passed by the learned Additional Sessions Judge, Faisalabad on 29-6-1993, summoning Muhammad Yaqub, petitioner to stand trial in case F. I. R. No. 179 dated 30-5-1991, registered at Police Station, Thikriwala for offence under section 302/324/428/34, P.P.C.

2. Briefly stated the facts of the case are that case F.I.R. No. 179 dated 30-5-1991 for offence under section 302/324/428/34, P.P.C. at Police Station, Thikriwala, District Faisalabad was registered on a report lodged by Muhammad Yaseen. He had named 4 persons as accused namely Muhammad Ayyub, Maqsood Ahmad, Abdur Rauf and Muhammad Yaqoob armed with .12 bore gun. The petitioner was alleged to have fired at Muhammad Amin, P. W. , causing an injury on a finger of his right hand. The occurrence had taken place at 5-30 a.m. on 30-3-1991. The petitioner claims that on 26-5-1991 he was admitted in Civil Hospital, Raja Jang and remained there till 1-6-1991. In the investigation conducted by the police it was proved that at the relevant time the petitioner was admitted in the hospital. Hence he was held to be innocent and a recommendation was made to discharge him from the case. Accordingly, the learned Ilaqa Magistrate vide his order dated 1-7-1991 discharged him from the case. After completing the investigation, the challan was submitted in the Court of learned Ilaqa Magistrate who forwarded it to Sessions Court. It was entrusted to Ikram-ul-Haq, Additional Sessions Judge, Faisalabad who proceeded with the trial against Muhammad Ayyub, Muhammad Yaqoob and Abdul Rauf. Another accused named Maqsood Ahmad was declared to be a proclaimed offender. On 17-6-1992, the case was transferred to the Court of Kh. Aurangzeb, Additional Sessions Judge and then to the Court of Mr. Abdul Razzaq Bhatti on 7-12-1992. The copies of the statements of P.Ws. were delivered to the accused on 13-1-1993. On 7-6-1993, the case was transferred to the Court of Mr. Jalal-ud-Din Akbar, Additional Sessions Judge, who passed the impugned order dated 29-6-1993, whereby the petitioner was also summoned as an accused.

3. The petitioner's learned counsel submits that the name of the petitioner did not figure in column No.2 or 3 of the challan, hence he could not have been summoned by the trial Court without recording any evidence; that the petitioner was declared to be innocent on the basis of documentary evidence rcgarding his admission in the hospital and not on Qasam/Nayan alone; that the trial Court is not competent to take cognizance of the offence in respect of the accused whose name does not figure in column No.2 or 3 of the challan. He relies on the following judgments:

(a) Bahadur and another v. The State PLD 1985 SC 62;

(b) Muhammad Alam and others v. Additional Secretary Home and others ? PLD 1987 SC 103;

(c) Muhammad Shamim v. Ali Gohar 1990 PCr.LJ 1932;

(d) S. Akhtar Sher v. The State 1991 MLD 1977;

(e) Damon and others v. The State 1992 MLD 1993;

(f) Talib Hussain and another v. Muhammad Aslam and another 1997 ? PCr.LJ 56;

(g) Nasarullah v. The State 1997 MLD 1430;

(h) Hameedullah Khan v. The State 1997 MLD 1745

Referring to the judgment in the case of Talib Hussain (supra) he submits that the accused person in the reported case was summoned by the trial Court after recording the statement of the complainant; that in the present case, the Court has passed a mechanical order without assigning any reason as to wh~' he had differed with the view taken by the Magistrate regarding innocence of Muhammad Yaqoob petitioner; that the Court below has summoned the petitioner simply because his name had figured in the F.I.R.; that the Court has not cared to advert to the investigation and the report submitted before the Magistrate under section 169 of the Cr.P.C.

4. On the other hand, learned A.A.-G. submits that in the present case there were 4 accused namely Muhammad Ayyub. Maqsood Ahmad. Abdur Rauf and Muhammad Yaqoob, out of whom Muhammad Yaqoob was found to be innocent by the police during the investigation and discharged by the Magistrate vide order dated 1-7-1991. Referring to the judgment in the cases of Waqar-ulHaq v. The State PLD 1988 Lahore 336 and Waqar-ul-Haq v. The State 1988 SCMR 1428, he submits that the Court has to take cognizance of the offence and not accused persons, therefore, any person who appears to be involved, can be summoned notwithstanding the fact that he was found innocent during the investigation; that while summoning the accused person the trial Court is not bound to record evidence or reasons as held in the cases of Muhammad Hanif and another v. The State 1979 PCr.LJ 1078 and Waqar Ilias and another v. The State through Federal Investigating Agency, Commercial Banking Cell, Quetta PLD 1993 Quetta 49; that an accused person discharged under the order of a Magistrate has to furnish a bond to appear in the Court and answer the charge levelled against him.

5 In reply, the petitioner's learned counsel submits that in all the judgments relied upon by the learned A.A.-G., the name of the accused had figured in column No.2 or 3, therefore, it was held that he could be summoned without recording any evidence or reasons. However, the petitioner's name does not figure either in column No.2 or 3 of the challan and he could not have been legally summoned to face trial.

6. The question regarding the jurisdiction of the Sessions Court to summon an accused person who has been found to be innocent -by the police during the course of investigation is not free from difficulty and has been answered differently in various judgments, in view of the peculiar facts and circumstances of each case. I will first refer to the judgment relied upon by the petitioner's learned counsel. Bahadur's case relates to the discharge of an accused and cancellation of the criminal case against him. The question agitated before the Honourably Supreme Court was whether the Magistrate in cancelling the case acts as a Criminal Court. It was held that while concurring with a report submitted under section 173 of the Cr.P.C. to discharge an accused, a Magistrate does not function as a Criminal Court and that the order passed by him is an administrative order, not amenable to revisional jurisdiction. The question of summoning an accused by the Sessions Court after his discharge by the Magistrate was not involved in Bahadur's case. In Muhammad Alam's case order for release and discharge of an accused was passed by the Additiopal Deputy Commissioner under the Provincially Administered Tribal Areas Criminal Laws (Special Provisions) Regulation 1 of 1975. Prior to that, he had taken cognizance of the offence on a report submitted by the police under section 173 of the Cr.P.C. In this background it was held that the so called discharge of the petitioners under section 169 or for that matter the cancellation of the case against them under section 173 of the Cr.P.C. by the Additional Deputy Commissioner, after taking cognizance under para. 4 of the Regulation was without lawful authority and of no legal effect. In Muhammad Shamim's case it was held that the Magistrate while discharging the accused on police report does not act as a Court and that the discharge order even if not impeached, does not bar the remedy of filing a private complaint. This judgment is not relevant to the controversy involved in-the present case. In the case of S. ' Akhtar Sher, it was held that without commencement of trial or recording the evidence, the Sessions Court had no jurisdiction to summdn the accused mentioned in column No.2 or against whom evidence was found deficient during the inquiry or investigation. In the case of Doman and others, it was held that the provisions of sections 190 and 193 of the Cr.P.C. were mandatory and a Court of. Session could not entertain any direct complaint, not being a Court of original jurisdiction, unless the same was forwarded to it by a Magistrate under section 193(1) of the Cr.P.C. In the case of Talib Hussain and another it was held that the Sessions Court would take cognizance of the offence in a case sent up by a. Magistrate under section 190(1) of the Cr.P.C. and that no investigation could be conducted by the .police after cancellation of the F.I.R. unless the order of cancellation was set aside. In Nasurullah's case it was held that the Court of

Session had to take cognizance of that case which was sent to it for trial by a Magistrate after having taken cognizance under section 190 of the Cr.P.C.; that the case ,of the accused person released by the police after investigation under section 169 of the Cr.P.C. was altogether different from that of other accused mentioned in columns Nos. 2 and 3 of the report submitted under section 173 of the Cr.P.C. and that the Sessions Court was not competent to pass an order for placing the accused in column No.2 of the challan. In Hameedullah Khan's case no discharge order was passed by the Ilaqa Magistrate but two accused persons were found innocent and their discharge was recommended. Before any discharge order could be passed by the Ilaqa Magistrate the case was investigated by another police officer who declared all the accused persons to be guilty hence challan was submitted against all of them. The case was further investigated into by the S.P. Range Crime who declared two accused persons to be innocent but again in another investigation conducted by the D.S.P., 'C.I.A. all the accused were found to be guilty. The challan was submitted in the Court of learned Additional Sessions Judge, Sargodha who summoned all the accused persons to face the trial. An application was submitted before him by -two accused persons who were found to be innocent in two police investigations for their acquittal under section 265-K of the Cr.P.C. The application was rejected. The said order was assailed before this Court in a Criminal Revision which was also dismissed. while dismissing the revision petition the Court had followed the dictum of the Hon'ble Supreme Co>>rt in the case of Raja Khush Bakhtur-Rehman v. The State 1985 SCMR 1314 and the view of this Court expressed in the case of Waqar-ulHaq alias Mithoo v. The State (PLD 1988 Lahore 336) in which it was held that for summoning the accused persons whose names appeared in column No.2 of the chailan it was not necessary for the learned trial Judge to record some evidence.

7. Now I may advert to the judgments relied upon by the respondent's learned counsel. In the case of Muhammad Hanif and another it was held that the Court took cognizance of the "offence" and not 'offencer" and that the Sessions Court was competent to summon the accused person whose name had been placed in column No.2 of the challan. In the case of Waqar-ul-Haq it was held that it was not necessary for the trial Judge to record some evidence for summoning the person whose name appeared in column No.2 of the challan. The view expressed in the case of Waqar-ul-Haq by this Court was affirmed by the Hon'ble, Supreme Court which was pleased to dismiss the petition for leave to appeal. The judgment is reported as Waqar-ul-Haq alias Mithoo v. The State (1988 SCMR 1428). The Hon'ble Supreme Court was pleased to hold that the case against the petitioners had not been cancelled by pacing them in column No.2, therefore, they could be summoned by the trial Court without recording evidence. In the case of Waqar Ilyas it was held that the trial Court was not bound to record evidence and to assign reasons for issuing process against the accused persons placed in column No.2 of the challan.

8. From the above-quoted judgments/authorities it can be gathered that the Sessions Court has to try the case sent up by the Magistrate, after taking cognizance under section 190(3) of the Cr.P.C. ; that the Sessions Court takes cognizance of the offence and not merely the offencer and that it is competent to summon the accused discharged by the Magistrate, whose name figures in column No.2 of the challan, without recording any evidence or reasons. In the present case the petitioner was discharged by a Court order but the case against him was not cancelled. His name was mentioned in the report prepared under section 173 of the Cr.P.C. as one of the assailants though it was mentioned that he was found to be innocent in the investigation conducted by Sardar Muhammad and Muhammad Sadiq, Sub-Inspectors. As the Magistrate has not passed any order for cancellation of the case against the petitioner, the police ought to have mentioned his name in column No.2 of the challan. The police cannot allocate to itself the function of determining the guilt or innocence of an accused finally. It may record its own opinion on the basis of the materiall produced before it during the course of investigation but even after finding anaccused to be innocent, it must place his name in column No.2 of the report and leave the final determination of guilt or innocence of the accused to be made by the Court. The omission on the part of the police or the Investigating Agency cannot affect the jurisdiction of the Sessions Court to pass an appropriate order to summon the accused, though found to be innocent by the police. It is true that in all the judgments relied upon by the respondent's learned counsel the name of ,the accused person found innocent by the police had figured in column No.2 of the challan. However, it does not mean that where the police either carelessly omits to mention the name of the accused, found innocent during the investigation or deliberately chooses to do so, he cannot be summoned by the Sessions Court to face trial, Making of various columns in the challan form is a device of convenience. It does not limit the jurisdiction of the Court to try only those accused persons whose names find mention in column No.2 or 3 of the challan. If a case is sent up for trial to the Sessions Court with brief facts of the case stated under column No.7 of the challan, the Court is at liberty to summon any person appearing to be involved in commission of an offence irrespective of the fact whether his name finds mention in column No.2 or 3 of the challan or not. In the case of Raja Khush Bakht-ur-Rehman and another supra, the Honourable Supreme Court was pleased to hold:-

"Under section 190(3), Cr.P.C. the Magistrate takes cognizance of an offence and not of an offender. He takes cognizance of the case as a whole and not qua only some of the accused found by the police to be implicated in the case. Cognizance can be taken even if the offenders be unknown. On taking cognizance of the offence the Court acquires jurisdiction over all the persons involved and not only over persons a?ainst whom the challan is submitted." (Underlining is mine).

9 It is evident from the above-quoted para. that the jurisdiction of the Sessions Court is not limited to the persons against whom challan is submitted by the Magistrate. Respectfully following the dictum of the Hon'ble Supreme Court, I hold that although the name of the petitioner was not placed by the Investigating Agency under column No.2 of the challan, the Sessions Court _was competent to summon him as an accused person without recording evidence. Of course while passing an order to summon an accused found innocent during the course of investigation or discharged from the case under an order passed by a Magistrate, the Sessions Court has to exercise its discretion/jurisdiction judiciously and not arbitrarily. In the present case, despite the finding of innocence in favour of the petitioner, the case against him was not ordered to be cancelled and the question of his innocence or genuineness of his plea of alibi had to be determined by the Court in accordance with law. The learned Additional Sessions Judge had noticed that the petitioner's name figured in the F.I.R. and although he was got discharged by the police, it was necessary to summon all the accused persons whose names figured in the F.I.R. Obviously, the Court below had perused the F.I.R. in which it was mentioned that the petitioner was armed with a .12 bore gun and had effectively fired at Muhammad Ameen, real brother of the complainant. The Court would have done well by referring to the finding of innocence recorded in favour of the petitioner but this omission, per se, is not sufficient to make the order an arbitrary one. However, the correctness of finding of innocence recorded by the police in favour of the petitioner or merits of his plea of alibi could not have been discussed by the Trial Court. In my view, the impugned order appears to have been passed to secure the- ends of justice and does not suffer from any legal infirmity to justify interference by this Court in exercise of the revisional jurisdiction.

10. For the foregoing discussion, do not find any merit in this revision petition which is dismissed.

N.H.Q./M-716/L Revision petition dismissed.