MST. NAZIRAN BIBI Versus MEHR GHULAM FARID, ADDITIONAL SESSIONS JUDGE, MULTAN
ORDER
C.M. No. l of 1996.
Allowed and disposed of,
Main case
Petitioner Mst. Naziran filed this petition under section 561-A, Cr.P.C. for the quashment of order of learned Additional Sessions Judge, Multan, dated 15-2-1996 whereby the learned Additional Sessions Judge summoned Mst. Naziran and Mumtaz to face trial of case F.I.R. No.93, dated 16-4-1993 under section 10/11, Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 of Police Station Qadarpur Raan, District Multan.
2. Learned counsel for the petitioner argued that petitioner and Mumtaz her .co-accused were found innocent during .the investigation and consequently were discharged by the learned Magistrate and therefore, their names were neither put in column No. 2 nor in column 3 of -the report prepared under section 173, Cr.P.C. Further submitted that petitioner and her co-accused were innocent and did not commit any offence. Also submitted that Mst. Haseena Mai the alleged abductee contracted valid marriage with Muhammad Ajmal, a younger brother of her husband. It was contended by the learned counsel that learned Additional Sessions Judge was not competent to summon the petitioner and her co-accused without recording the evidence and further that since the names of the petitioner and her co-accused Mumtaz were not shown in the challan, the learned Additional Sessions Judge had no authority whatsoever to summon the petitioner or her Go-accused to face the trial.
3 I have heard the learned counsel and considered his contentions with care.
4. Similar contentions were raised before this Court in case Ghulam Hussain and others, v. The State, which was disposed of on 13-12-1995 and reported in 1996, MLD 903.1 expressed the view that:--
"The Court takes cognizance of the case as a whole and not qua some of the accused found by the police implicated in the case. Cognizance can be taken even if the offender is unknown. On taking cognizance of the offence the Court acquires jurisdiction over all the persons involved and not only over the persons against whom the challan is submitted. Cognizance means application of mind to the facts of the case in order to determine whether the facts disclosed constitute an offence triable. Application of mind for the purpose of cognizance under section 190(1) and, (3) read with section 193, Cr.P.C. is for the purpose of determining whether the facts disclosed constitute an offence triable exclusively by the Court of Session. A Magistrate sends the whole case to the Court of Session- and not qua the accused only who are placed in Column No. 2 or 3 of the report under section 173, Cr.P.C."
5. The present case was not cancelled. Only -the petitioners were found innocent and they were discharged under section 63, Cr.P.C. whereas other accused named in the F.I.R. were challaned. It is clear that the challan was submitted to the Court of Magistrate who took the cognizance and sent the same to the Court of Session for, trial. In the presence of the material on record there was no need to record the statements of the witnesses first and then to call the petitioners to face the trial. It would amount to rehearsal of a full-fledged trial and wastage of precious time of the Court and' the public at large. In the case of Waqar-ul-Haq alias Nithoo and others v. The State reported in 1988 SCMR 1428, it was observed that the contention 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, did not find favour and it was held that the accused persons whose names appeared in column No.2 of the challan can be summoned by the trial Court directly to stand trial and it is not necessary that first some evidence should be recorded,
6. The petitioner is named in the F.I.R. and the prosecution witnesses have named her in their statements under section 161, Cr.P.C. In such a situation it is not necessary for the trial Court to record the statements of the complainant or the prosecution witnesses before summoning the accused to face the trial in a case registered by the police. The accusation against the petitioner exists in, the first information report, and the statements recorded under section 161, Cr.P.C., which would prima facie show that there were reasonable grounds to proceed with the trial against the petitioner and her co-accused. It would be immaterial if the name of the accused/petitioner is mentioned in column No.2 or 3 of the challan or not.
7. The challan case cannot be equated with the complaint case. It may be necessary under section 202, Cr.P.C. to record statement of the complainant before summoning the accused person to face trial under section 204, Cr.P.C. but the situation is different in a case in which the police records the F.I.R. and submits the challan in the Court. Section 265-B, Cr.P.C. deals with the procedure to be adopted by Sessions Court and section 265-C provides that F.I.R., police report, statement of all the witnesses recorded under sections 161, 164 and the inspection note recorded by the Investigating Officer on the first visit to the place of occurrence and note recorded by him, recoveries if any, shall be supplied free of costs to the accused and the Court after perusing the police report and all other documents and statements filed by .the prosecution will form its opinion, if there is ground for proceeding with the trial of the accused and then it shall frame in writing charge against the accused as provided under section 265-D, Cr.P.C.
8. The learned Additional Sessions Judge in the impugned order observed that:
"I have gone through the file particularly the investigation carried out by D.S.P. Circle and statements of the P.Ws. recorded by him under section 161, Cr.P.C. and find that sufficient material has been brought on record inculpating Mst. Naziran wife of Iqbal, Mumtaz son of Allah Ditta with commission of offence under section 11, Offence of Zina and section 114, .P.P.C. The mere fact that they both were found innocent and were got discharged is hardly a sufficient ground to detract this Court from summoning them as accused to face trial, without recording evidence.
This observation of the learned Additional Sessions Judge in the impugned order leads to irresistible conclusion, that he perused the relevant material and applied his judicial mind to the facts and circumstances of the case before summoning the petitioner and her co-accused to face the trial. The impugned order can neither be termed mechanical nor improper or incorrect. It cannot also be held as the abuse of, the process of the Court as envisaged in section 561-A, Cr.P.C.
For what has been stated above, this quashment petition has no merits, which is hereby dismissed in limine. Police file be returned forthwith.
N.H.Q./N-17/L Petition dismissed.