MUHAMMAD SHARIF vs THE STATE and another

' AJMAL MIAN, J.---This is a petition for leave to appeal against the order dated 26-9-1993 passed by a learned Single Judge of the Lahore High Court in Criminal Revision No, 378 of 1993 filed by the petitioner against the issuance of process by the learned Additional Sessions Judge, Sheikhupura, dismissing the same in limine.

2. The brief facts are that the petitioner alongwith a number of other co-accused was nominated in F.I.R. No, 47/90 dated 8-3-1990, registered at Police Station Narang Mandi, under section 302/307/326/201/148/149/109, P.P.C. It appears that out of 25 accused, during the investigation, 11 persons were got discharged having been declared innocent by the Investigating Agency. The complainant filed Criminal Revision 73 of 1993 against the order dated 20-12-1992 of the learned Additional Sessions Judge, Sheikhupura, dismissing the complainant's application for summoning those accused who were discharged by the Trial Court. To the above Revision Application, the petitioner was also party. The same was disposed of by the learned Judge in Chambers by his order dated 13-3-1993, inter alia, by observing as follows:- "The trial Court possesses ample power to summon even a discharged person provided the Court is satisfied that the material exists on the file justifying summoning of such discharged person. In this case when an application was moved before the trial Court for summoning the respondents, it seems vide perusal of the impugned order that the learned trial Court once for all closed the door of summoning the respondents in this case. That was not the correct approach because the matter should have been left open or the learned trial Judge ought to have observed that the application is premature. The circumstances now are different and, therefore, in the circumstances of the case I would hold that the question is still open and the petitioner may, if so advised, move the trial Court afresh in the light of the orders of this Court to decide the question of summoning the discharged persons to face trial."

' After that respondent No, 2 moved another application for issuing process, inter alia, against the petitioner which application was granted by the learned Additional Sessions Judge by order dated 19-5-1993 which was assailed through the above Criminal Revision Application, which was dismissed in limine. The petitioner has, therefore, filed present petition for leave to appeal.

3. In support of the above petition Mian Ata-ur-Rehman, learned Advocate-on-Record appearing for the petitioner, has vehemently contended that once the petitioner was discharged during the investigation, no fresh process could have been issued against him by the learned Additional Sessions Judge.

' However, he is unable to site any provision to indicate that once an accused is discharged during the investigation and if some evidence has come on record against him, the trial Court cannot issue process against him.

4. Then, it was contended by the learned counsel for the petitioner that the First Criminal Revision Petition filed by respondent No, 2, in which above observations were made, was not competent as the order of discharge was an administrative order and not a judicial order.

' The above contention is also devoid of any force as the above order of the learned Single Judge dated 13-3-1993 acquired finality as the petitioner had not filed any further proceeding against the same.

5. There is no merit in the above petition. Leave is refused.