ABADAT KHAN vs ADDITIONAL SESSIONS JUDGE, FAISALABAD and 2 others
This criminal miscellaneous petition challenges an order passed by the Additional Sessions Judge, Faisalabad, whereby the petitioner was summoned to face trial under Sections 302 and 109 of the Pakistan Penal Code 1860 following a murder. The core legal question was whether the trial court was competent to summon an accused nominated in the First Information Report who had been declared innocent during police investigation and omitted from the police report under Section 173 of the Code of Criminal Procedure 1898. The Lahore High Court held that the trial court acted lawfully in summoning the petitioner based on the allegations and material on record, noting that the investigative practice of clearing an accused through oaths on the Holy Qur'an has been depreciated by superior courts. The petition was dismissed, establishing that an accused nominated in the First Information Report can be summoned by the trial court irrespective of police exoneration, and may subsequently seek remedy through an acquittal application under Section 265-K of the Code of Criminal Procedure 1898.
- Can a trial court summon an accused who was declared innocent during police investigation and omitted from the report under Section 173 of the Code of Criminal Procedure 1898?
- Is the procedure of declaring an accused innocent by administering an oath on the Holy Qur'an legally sustainable in criminal proceedings?
- What is the appropriate remedy for an accused summoned by the trial court after being declared innocent by the police?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
- Section 265-K, Code of Criminal Procedure 1898
ORDER
1. ' Abadat Khan son of Gul Khan has assailed order, dated 14-5-2001 passed by Additional Sessions Judge, Faisalabad whereby he was summoned to face the trial alongwith his co-accused in case No,82 of 1999 dated 4-11-1999 under sections 302/109, P.P.C. For commission of murder of Ahmad Ali.
2. ' Learned counsel for the petitioner contended that the petitioner was declared innocent during the investigation, many respectables of the locality had sworn affidavits and taken oath on Holy Qur'an to prove the innocence of the petitioner, therefore, he was not challaned even in Column No,2 by the Police; the trial Court was not competent and justified to summon the petitioner without recording the evidence during the trial.
3. ' Conversely the petition has been opposed by the learned counsel for the complainant and for the State. The learned counsel for the complainant by placing reliance on 1995 PCr.LJ 1793 Abdul Sattar v. The State has argued that the procedure of swearing on Holy Qur'an is not applicable to the criminal proceedings. L veli if the accused nominated in the F.I.R. Has not been placed in Column No,3 or Column No,2 of report under section 173, Cr.P.C. He can be summoned by the trial Court after taking into consideration the allegations levelled against him and the material brought on record.
4. ' After giving consideration to the contentions raised at the Bar and perusing the record I do not find any illegality or infirmity in the impugned order. The petitioner was nominated in the F.I.R. For abetment. The procedure adopted by the Investigating Officer to declare him innocent by administering oath on Holy Qur'an has been depreciated by the apex Court in number of cases, therefore, the petition is dismissed having no force. The petitioner shall appear before the trial Court and join the proceedings and thereafter he can move application under section 265-K, Cr.P.C., for his acquittal and if that course is resorted to, the learned trial Court will dispose of his application with a speaking order in accordance with law. / Order accordingly