MUKHTAR ALI and 3 others vs SONO and another

' This Revision Application is directed against the order dated 14-4-1992 passed by the Sessions Judge, Dadu, in Cr. Misc. Application No,3 of 1992.

2. On 27-11-1991, F.I.R. No, 131/91 was lodged by complainant Sono at P.S. Khairpur Nathan Shah for offences under sections 148 and 302/34, P.P.C. Read with section 114 of P.P.C. Against accused Liaquat Ali, All Murad, Mukhtiar Ali, Shaman Khan, Sada Hussain and Jan Muhammad. Police registered the case and after due investigation submitted challan in the Court of Civil Judge and F.C.M., Khairpur Nathan Shah, who sent the case to the Court of Session, Dadu, under subsection (3) of section 190 of Cr.P.C. With the challan, police sent up accused Liaquat All and All Murad to stand trial, while remaining persons mentioned as accused in the F.I.R., were mentioned in column No,2 of the challan and they were released under section 497, Cr.P.C.

3. Consequently, complainant Sono moved Cr. Misc. Application No,3 of 1992 in the Court of Sessions Judge, Dadu, praying that Mukhtiar Ali, Shaman, Sada Hussain and Jan Muhammad mentioned in column No,2 of the challan be joined as accused to stand their trial with accused Liaquat All and Ali Murad. Under the impugned order dated 14-4-1992, the Sessions Judge accepted Cr.Misc. Application No,3 of 1992 of Sono, and directed the persons mentioned in column No,2 of the challan to be tried with Liaquat All and All Murad. Hence the applicants, who were put in column No,2 of the challan, have filed this revision application.

4. Mr. Ahmed Khan Barakzai, learned counsel for the applicants did not challenge power of the Sessions Judge to join the applicants as co-accused in the case and to order their trial with Liaquat All and All Murad. He was of the view that there was no justification for directing trial of the applicants as accused, before recording any evidence. In support learned counsel cited the case of Raja Khushbakhtur Rehman and-another v. The State (1985 SCMR 1314) where it was observed that under section 190(3), Cr.P.C. The Magistrate takes cognizance of an offence and not of an offender. That the Magistrate 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. In cited case the trial Court while summoning the persons mentioned in column II of the police challan to face the trial as accused, had given reasons for the same and had perused the record before him, and it was held that the order summoning the persons mentioned in column II of the challan suffered from no legal infirmity. Said case was followed in the case of Waqarul Haq alias Mitho and another v. State (PLD 1988 Lahore 336) where the view taken was that a trial Judge acted within his jurisdiction in summoning persons in column II of challan to stand their trial. It was also viewed in said case that for summoning an accused person whose name appears in column No, II of the challan, it is not necessary for the trial Judge to record some evidence. Said judgment (PLD 1988 Lahore 336) was challenged in the Supreme Court of Pakistan in Petition for Leave to Appeal No,118 of 1988, decided on 25-5-1988 under a judgment reported in 1988 SCMR 1128. In the judgment delivered by Hon'ble Supreme Court of Pakistan it was held that the accused persons whose name appears in column 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. It was also held that if certain persons accused in a case were innocent according to the police investigation, it does not mean that they cannot be summoned to stand trial by the trial Court. In the case of Muhammad Haneef and another v. State (1979 PCr.LJ 1078) the view taken was that persons placed in coulmn No,2 of the challan, submitted in the Court of a Magistrate which was sent to the Court of Session, could be summoned by the Sessions Judge on his taking cognizance of the offence.

5. Mr. Abdul Latif Ansari, learned AA.-G. Opposed the application and cited the case of Khalid lqbal v. The State (1991 PCr.LJ 443) wherein it was held by the Federal Shariat Court that the trial Courts shall apply their mind if there is being made out a prima facia case against a person placed in eatilmn No,2 of the challan and thereafter to summon him to face the trial.

6. The names of the applicants appear in the FIR and specific role has been assigned to them. Their names also appear in the police statement of three eye-witnesses recorded on 5-124991 as argued on behalf of the respondent No,1. In the circumstances, the Sessions Judge was competent to call upon the applicants to face their trial. No irregularity or illegality or impropriety appears in the impugned order. Consequently, this Revision Application stands dismissed.