SHAUKAT ALI and 2 others vs THE STATE

' In this Criminal Revision there are 3 petitioners, namely, Shaukat All son of Ashiq Ali, Mst. Zainab Bibi wife of Ashiq Ali and Mst. Rehana alias Bubli, all Malik by caste. F.I.R. No,43/93 was registered at Police Station Gulshan-e-Ravi on 17-2-1993 at the instance of the complainant Sh. Muhammad Siddique and latter challan was submitted under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979). According to F.I.R. Alongwith the 3 petitioners, one Shaukat All son of Mehand, Gujar by caste, were the accused but, in the challan, the police placed the three petitioners in Column No,2. According to police, the culprit was Shaukat All son of Mehand and there was no evidence implicating the present petitioners in the offence in question. However, by order, dated 17-2-1994, noting that the three petitioners were not present before the trial Court, process was directed to be issued against the three petitioners. Being aggrieved by the order, dated 17-2-1994, ordering issuing of process against the three petitioners, the present revision petition has been filed. I have heard Mr. Ch. Muhammad Siddique, learned counsel for the petitioners and Mr. Ch. Imtiaz Ahmad, learned counsel representing the State.

2. The main contention of the learned counsel for the petitioners is that the order for issuance of process against the three petitioners was passed by the trial Court without application of mind.

According to learned counsel, from the order itself, it is apparent that without apparently being aware that the police had not found any evidence implicating the petitioners in the offence in question and the fact that they had been placed in Column No,2 in the challan, trial Court passed an order for issuance of process against the petitioners after noting that the petitioners were not present before the trial Court. Learned counsel has also relied upon a judgment of learned Single Judge of the Lahore High Court in the case of Haji Muhammad Aslam v. The State reported in 1986 PCr.LJ 1492.

3. The judgment of the Lahore High Court relied upon the learned counsel supports the contention advanced in the present revision petition and the same is reproduced here:-- "I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. I find that the petitioner was found innocent by the three Investigating Officers; that his name was placed in Column No,2 of the challan and that Column No,2 contains the names of the persons who were not challaned as accused. Despite that the learned trial Court has arbitrarily summoned the petitioner to face trial, inasmuch as, it has not applied its conscious mind to the F.I.R. Statements of the witnesses recorded under section 161, Cr.P.C., the opinion of the three Investigating Officers declaring the petitioner innocent and the fact that his name was placed in Column No,2 of the challan which relates to persons, who are, in fact, not challaned. That being the position, there is no option but to set aside and quash the impugned order. Order accordingly."

4. Learned counsel for the State is also of the view that apparently the order was passed by the learned trial Court for issuance of process against the three petitioners without application of mind.

5. After perusal of the report under section 173, Cr.P.C. And the order, dated 17-2-1994 passed by the trial Court, I am also of the view that the order has been passed for issuance of process against the petitioners by the trial Court apparently without realising that the names of the three petitioners have been placed in Column No,2 of the challan and, according to police, no evidence was found to implicate the petitioners in the offence in question. This should not be taken to mean that the opinion of the police is binding on the trial Court. However, it was incumbent upon the trial Court, before issuing the process against the three petitioners, who had been placed in Column No,2 of the challan, to look at the material available with the police and then pass the order which would have indicated that the Court had come to the prima facie conclusion that on the basis of the material available with the police, the petitioners were involved in the offence in question.

6. In the circumstances, this revision petition is allowed, the order, dated 17-2-1994 of the trial Court ordering issuance of process against the three petitioners is set aside. The trial Court is, however, free to pass fresh orders in accordance with law in the light of the observations made in this judgment.

Revision .