SHAMSHAD ALI vs THE STATE

This judgment will dispose of Criminal Miscellaneous No.53-Q of 2002 filed by Haji Shamshad Ali, petitioner for the quashment/setting aside of order dated 10-3-2003 passed by learned Additional Sessions Judge, Faisalabad.

2. Brief facts of the case are that a case F.I.R. No.268 of 1998 dated 22-5-1998 was registered in Police Station, Factory Area, Faisalabad under section 324/337-H(ii), 337-L(ii), 337-F(v), 148, 149, P.P.C. On the statement of Muhammad Azam respondent No. 1 against Haji Shamshad Ali (present petitioner), Dr. Asghar Habib, Anwaar-ul---Haq, Tariq Saeed, Liaquat Ali, Muhammad Azam Gillani, Muhammad Yasin and 8/10 unknown persons, case was investigated and according to the report under section 173, Cr.P.C. Dated 27-6-1998 Anwaar-ul-Haq, Dr. Asghar Habib, Tariq Saeed, Liaquat Ali and Muhammad Yasin were challaned. During the pendency of challan, accused persons made an application under section 249-A, Cr.P.C. Before the learned trial Court, who after framing the charge acquitted the accused persons, thereafter, Muhammad Azam (complainant) filed Criminal Appeal No.598 of 1999 against their acquittal before this Court in which my learned brother Riaz Kayani, J. (as he then was) on 22-2-2000 summoned Anwaar-ul--Haq, Dr. Asghar Habib, Tariq Saeed and Liaqat Ali and did not issue notice against Muhammad Azam and Muhammad Yasin, ultimately, the said appeal against acquittal finally came up for hearing before me on 4-11-2002, the same was accepted, order of acquittal passed in favour of Anwaar-ul-Haq, Dr. Asghar Habib, Tariq Saeed and Liaqat Ali was set aside, case was remanded back with the direction to conclude the trial within three months. As no notice was issued against Muhammad Azam and Muhammad Yasin, so it was ordered that position in their favour remained the same, as was held by my learned brother Riaz Kayani, J: (as he then was) as mentioned above, thereafter, Muhammad Azam complainant made an application before the learned trial Court for summoning of the present petitioner and the learned trial Court after giving notice to the parties did not summon the pgtitioner and dismissed his application, then, Muhammad Azam complainant filed revision petition before the learned Additional Sessions Judge, Faisalabad, who accepted the same, set aside the order of learned trial Court and directed that Haji Shamshad Ali (present petitioner) should also be tried and against the said order dated 10-3-2003 present petition has been submitted before this Court.

3. Learned counsel for the petitioner in support of this petition submits that during the course of investigation, the present petitioner was found innocent, compromise was effected between the parties, he was released under section 169, Cr.P.C. By the police, order of the police for releasing the petitioner under section 169, Cr.P.C. Was never challenged, no challan was submitted against the petitioner, he was never summoned by the trial Court, thereafter, all the accused persons were acquitted by the learned trial Court, appeal against acquittal filed by Muhammad Azam complainant was against only those persons who were challaned by the police and not against the present petitioner. He lastly submits that without recording any evidence the trial Court could not have summoned the petitioner. He has relied upon PLD 1986 Lahore. 256; 1997 MLD 1430 and 1999 PCr.LJ 731.

4. On the other hand, learned Additional Advocate-General who was also issued notice submits that order of learned Additional Sessions Judge, Faisalabad dated 10-3-2003 is illegal because the learned trial Court was right for not summoning the present petitioner without recording any evidence.

5. On the other hand, learned counsel for Muhammad Azam respondent No.1 submits that according to the F.I.R., petitioner was armed with pistol, he fired a shot but did not hit anybody, that case of Muhammad Yasin and Muhammad Azam (accused) was totally different to case of present petitioner because only "Lalkara" was attributed to them, that Court has got powers to summon an accused person, who has been placed in Column No.2 of the challan without recording any evidence and even who has not been placed in Column No.3 of the challan report under section 173, Cr.P.C. He has relied upon 1988 SCMR 1428; 1984 SCMR 221; 1985 SCMR 1314; 1972 SCMR 335; PLD 1967 SC 425; PLD 1998 Lahore 523 and 2000 PCr.LJ 1679.

6. I have heard learned counsel for the parties. The facts of the present case are totally different to those judgments which have been cited by learned counsel for respondent No.1. In the instant case, petitioner was found innocent, he was released under section 169, Cr.P.C. By the police, he was never placed in Column No.2 or 3 of the challan report under section 173, Cr.P.C., he was not even challaned, he was not sent up for trial. The accused, namely, Anwaar-ul-Haq, Dr. Asghar Habib, Tariq Saeed, Liaqat Ali and Muhammad Yasin were sent to Court but learned trial Court after giving so many opportunities to the prosecution acquitted those accused persons to whom learned counsel for Muhammad Azam complainant filed an appeal against acquittal mentioned above and in that appeal against acquittal no notice was issued to Muhammad Azam and Muhammad Yasin accused mentioned in the F.I.R., though they were named in the F.I.R. And. Only "Lalkara" was attributed to them. On the final hearing of appeal against acquittal, case against Anwaar-ul-Haq, Dr. Asghar Habib, Tariq Saeed and Liaqat Ali was remanded back. The complainant did not challenge the innocence of the present petitioner at any stage prior to the remanding of the case by this Court to the learned trial Court, it means that he was satisfied with the investigation, he even did not ask the learned trial Court in the first instance when the challan was submitted against other accused persons to summon the present petitioner in that case.

7. After hearing learned counsel for the parties and the submissions made by them, particularly even by learned Additional Advocate-General, who does not belong to any party I am of considered opinion, that no accused persons can be summoned without recording any evidence who has been got discharged by the police and moreover, the police never declared the present petitioner as guilty at any stage. In this view of the matter, this petition is accepted and order impugned dated 10-3-2003 passed by learned Additional Sessions Judge, Faisalabad is set aside.