WAQARUL HAQ ALIAS NITHOO Versus STATE

ORDER

1. JAVID IQBAL, J.‑‑ This petition for leave to appeal has been filed by the petitioners and is directed against the judgment passed by the Lahore High Court, Lahore dated 27th March, 1988 in criminal revision.

2. Briefly the position in this case is that a case is registered against the petitioners and Muhammad Rafiq under section 302/34, P.P.C. It was investigated by 3 different investigating agencies, first by A.S.‑I., then by S.I. and thereafter by A.S.P. They found the petitioners innocent of the offence and recommended that their names be placed in column No.2. Thereafter fourth investigation was carried out by A.S.P., Multan who too was of the opinion that they were innocent and that their names should be placed in column No.2. Then another investigation was conducted by D.S.P. Crimes Branch who also and the same opinion. On the basis of the consistent findings of these investigating officers a report under section 173, Cr:P.C. was filed before the Illaqa Magistrate in which the petitioners were shown in column No.2, and the name of the third co‑accused namely Muhammad Rafiq was shown in column No.3. On behalf of the police an application was also put up before the Illaqa Magistrate that the petitioners be discharged. Consequently the Illaqa Magistrate vide his order dated 1st September, 1985 directed the petitioners to be discharged under section 63, ‑Cr.P.C. Thereafter by another order dated 1st December, 1985 he sent the case to the Court of Sessions for trial. The Additional Sessions Judge Khanewal who was seized with the matter summoned the petitioners for trial of the case but the petitioners did not appear and instead a photocopy of the discharge report was placed before the Sessions Court. However Muhammad Rafiq was present in custody. Be that as it may the Sessions Court passed the order to the effect that since the petitioners had been implicated in the offence, bailable warrants be issued against them for being present on the next date of hearing i.e. 6th December, 1986. This order was challenged by way of a criminal revision which was eventually dismissed by learned Single Judge of the Lahore High Court, Lahore vide the impugned judgment. Learned counsel for the petitioners placing reliance on Muhammad Alam and another v . Additional, Secretary to Government of N . ‑W . F . P . , Home and Tribal Affairs Department and others (P L D 1987 S C 103) , and Raja Khushabakhtur Rehman and another v. The State (1985 S C M R 1314) argued that if the petitioners had been discharged by a magistrate it would mean that the registration of a case against them had been cancelled and that they could not be mechanically summoned by the Sessions Court at the trial. The contention is that first evidence should be recorded and if in the light of such evidence the trial Court deems it proper to summon them only then they may be summoned. The point involved in this case is that three persons have been accused of the offence out of which one Muhammad Rafiq was placed in column No.3 whereas the present petitioners were placed in column No.2. The accused person whose name appears in column No.2 of the challan can be summoned by the trial Court directly to stand the trial and it is not necessary that first some evidence should be recorded. In the present case the challan against the petitioners had not been cancelled by placing them in column No.2. It only meant that according to the police investigation they were found innocent, and therefore, they were discharged under section 63 of the Cr.P.C. However it does not mean that they could not be summoned to stand trial by the Sessions Court. In that view of the matter we do not find any substance in this petition which is accordingly dismissed.

3. M.I./W‑23/S Petition dismissed.