Summoning of Person Not Named in FIR without Recording of Evidence

Summoning of Person Not Named in FIR without Recording of Evidence Case Laws Criminal Law Criminal Revision Knowledge - Criminal Law Lahore High Court Litigation & Arbitration Solutions - Criminal Law Summons in Criminal Trial Mr. Justice Sardar Muhammad Sarfraz Dogar in his judgment has decided the issue regarding summoning of person not named in FIR without recording of evidence by trial court in Criminal Revision No. 117 of 2009/BWP.

1. The petitioner, namely, Dr. Muhammad Bilal Ghafoor, by filing the instant revision petition under section 439, Cr.P.C. has called in question the order dated 27.06.2009 passed by the learned Additional Sessions Judge, Rahim Yar Khan, whereby he had been summoned to face trial in a criminal case arising out of F.I.R. No. 144 of 2007, dated 29.3.2007, registered at Police Station City A- Division, District Rahimyarkhan for an offence under section 302, P.P.C.

2. Succinctly, facts leading to the revision petition are that the above-referred F.I.R was lodged on the basis of an application moved by Masood Akbar Khan Kanju/respondent to the police alleging therein that Fakhar Mahmood Akbar Khan Kanju (deceased) was his brother who had been elected as Union Nazim and Union Councilor of Rahim Yar Khan. On the day of occurrence, a public meeting of Makhdoom Ahmad Mahmood, President Pakistan Muslim League (Functional) Punjab was to be held in Jamal Din Wali. The police took into custody certain Nazims and influential persons since the last night/evening in order to prevent them from welcoming the aforesaid Makhdoom Ahmad Mahmood. Therefore, in the last night at about 1.00 a.m. the police officers and officials in the presence of the complainant, Ahmad Hameed son of Abdul Hameed and Shahid Mahmood son of Asmat Ullah took Fakhar Mahmood Kanju into custody for restraining him from participating in the public meeting and tortured him mentally, psychologically and physically, as a result of which, it came to know that the dead body of his brother was lying at Sheikh Zayad Hospital, Rahimyar Khan. On the information of Press Reporter, the complainant reached there and saw that postmortem examination had been conducted on the dead body of his deceased brother and the dead body was lying there helpless. According to the complainant, his brother died in police custody and the deceased had been murdered after harassing and giving him mental, physical and psychological torture.

3. Since the police had already got conducted the autopsy on the dead body of Fakhar Mahmood deceased declaring him as unknown person but respondent No. 2 being dissatisfied with the said postmortem report made representation to the District Police Officer, Rahim Yar Khan, who requested the learned Sessions Judge, Rahim Yar Khan for holding judicial inquiry in the matter. The learned Sessions Judge thus appointed the learned Senior Civil Judge/Magistrate Section 30, Rahim Yar Khan as an Inquiry Officer and on the application moved by the complainant/respondent No. 2 before the learned Illaqa Magistrate for constitution of Medical Board re-examination of the deceased’s corpse was again conducted on the same day, i.e. 29th March, 2007 by the District Standing Medical Board.

4. On 10th of November, 2007, the learned Inquiry Officer/Senior Civil Judge, Rahim Yar Khan submitted his report of Judicial Inquiry regarding death of Fakhar Mahmood Akbar Khan Kanju (deceased), wherein he concluded as under:

“8. Keeping in view the statement of Masood Akbar, affidavits of Muhammad Shahid Mehmood, Ahmer Hameed Kanju and Ehsan-ul-Haq 739/C, it stands proved that police party arrested Fakhar Mahmood Akbar Khan Kanju from his residence at 1.00 a.m. between the night of 28 and 29 of March, 2007. The version of police stands falsified that they found unknown person lying near “TAKKIA LAL FAQEER” graveyard, which was sent to Hospital for medical treatment/postmortem. From evidence on record, mentioned supra, this court is of the affirm opinion that on the night falling between 28 and 29 of March, 2007, police party arrested Fakhar Mahmood Akbar Khan Kanju from residence and took him to police station. As per report of Medical Board, Fakhar Mahmood Akbar Khan Kanju sustained five injuries, mentioned in detail in Para No. 2 of this report. Bacteriologist report also corroborated the report of Medical Board that ante-mortem injuries were found on the person of Fakhar Mahmood Akbar Khan Kanju. In view of above discussion, it stands proved that Fakhar Mahmood Akbar Khan Kanju died on account of police torture.”

5. After usual investigation, complete challan of the case was submitted in the court of learned Sessions Judge, Rahim Yar Khan on 25.2.2008 and copies of the documents as required under section 265-C, Cr.P.C. were delivered to the accused on 27.5.2008 and the case was fixed for framing of charge when an application on behalf of the complainant-respondent No. 2 was moved for summoning of Pervaiz Elahi and Dr. Bilal Ghafoor petitioner as according to him a case under section 201 of the Pakistan Penal Code is made out against petitioner Dr. Bilal Ghafoor for willfully destroying the evidence, whereas, against Ch. Pervaiz Elahi, Ex-Chief Minister, Punjab offence under sections 302/324/34/120-B/109 PPC is made out. The learned trial court through the impugned order dated 27.06.2009 accepted the said application while declaring as under:

“5. Perusal of record shows that there is sufficient material on record to show the connectivity of the above two named persons with the commission of this offence. In view of the above, I am, therefore, inclined to allow this application.

6. Learned counsel for the petitioner contends that the impugned order is not a speaking order; that instead of any material available on the record the report submitted on Judicial Inquiry was illegally considered by the learned Additional Sessions Judge for passing the impugned order; that even the said report has not been appreciated in its true perspective; that neither the petitioner was named in the F.I.R. nor was his name placed as an accused in any of the columns of the report submitted under section 173, Cr.P.C.; that as a matter of fact the petitioner’s name was mentioned as a witness in the report under section 173, Cr.P.C. that the complainant never ever submitted any complaint against the petitioner, however, he has been summoned to face the trial just on the application which was submitted by the complainant during pre-trial proceedings pending against the accused named in the report under section 173, Cr.P.C.; that before commencement of the trial and without recording any evidence the learned trial court had no jurisdiction to summon the petitioner to face the trial and that there is no material on the record justifying the order of summoning the petitioner as an accused. In order to shore-up his contentions learned counsel has placed reliance on the cases of “S. Akhtar Sher v. The State and another” (1991 MLD 1977) and “Inayatullah and 4 others v. The State and another” (1999 P.Cr.L.J. 731).

7. Conversely, the learned DDPP appearing on behalf of the State as well as learned counsel for the complainant has vehemently opposed the petition, contending that the learned trial court can summon the accused to face the trial and there is no legal bar whatsoever that at the first instance evidence should be recorded to ascertain as to whether prima facie case is made out against him; that the petitioner may be joined as co-accused to face the trial and defend his case so that the truth may come on the record.

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