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Criminal Revision No. 248 of 1979, decided on 20th March, 1979.

----Ss. 561-A & 439-Criminal trial-Sessions Judge in his order only stating accused to be summoned from District Jail of K for a given date-Petitioners not in Jail at K at such time-Case of two accused other than petitioners alone sent up for trial to Sessions Court-Reference to accused in Sessions Judge's order summoning accused hence related to two accused sent up for trial and not to petitioners and order for notices being sent to peti tioners to attend Court passed on wrong assumption with material irregularity-Order set aside, case remanded to Sessions Court for disposal of application of two petitioners once again with observation that nothing contained in High Court's orders debars Sessions Judge from summoning petitioner to stand trial but if he so desires it must be done by a proper and conscious order.

Ch. Muhammad Iqbal for Petitioners.

Tanveer Ahmed Khan, A. A. G. for the State.

Date of hearing :20th March, 1979.

This is a petition under section 561-A, Cr. P. C. by Bashir and Karam Din petitioners for quashment of case titled State v. Bashir, etc. under section 302/307/34, Y. P. C., pending against them and some others before an Additional Sessions Judge at Kasur.

2. The brief facts of the case are that the two petitioners with three others (namely, Liaqat Ali, Amir and Ashiq) were involved in a case under section 302/307/34, P. P. C. at the instance of one Muhammad Din complainant in case F. I. R. No. 198 lodged at Police Station, Laliani on 14th September, 1975. The case was investigated by the Police under the supervision of the Deputy Inspector-General of Police, Lahore, The petitioners were found innocent by the police. On 17th November, 1975 the petitioners got discharged by the police from the Magistrate Later on 2nd February 1976, the police submitted a challan against Ameer and Liaqat Ali accused in Court under section 302/307/34 P. P. C. excluding Ashiq accused; who had in the meantime died. Or 23rd February 1976, the case was sent by the Magistrate to the Session, Judge, Kasur. When the case came up on 23rd January 1978, the learned Sessions Judge, Kasur, ordered that the accused should b summoned from the District Jail. Kasur, for 6th February, 1978. On the next hearing, the accused were absent, as the Superintendent District Jail, Kasur, reported that the accused were not confined in his Jail. Accordingly, the learned Sessions Judge ordered the accused to be summoned for 21st February 1978, through the Station House Officers of the respective police stations concerned. Fortunately or unfortunately, notices having issued to the two petitioners, they appeared before the Sessions Judge on 21st February, 1978. The other two accused actually sent up for trial were absent and were reported to be in Camp Jail, Lahore. Accordingly, the learned Sessions Judge ordered the said two accused to be produced in Court on 12th March, 1978. On the next date, the said accused not having been produced, the case was adjourned to 4th April 1978, for their production. On the next date, the said two accused being present, the copies of the statement, etc. were supplied under section 265-C, Cr. P. C. Subsequently, the case was entrusted to the Court of an Additional Sessions Judge, Kasur. On 15th February 1979, the petitioners made an application to the said learned Additional Sessions Judge for being discharged from the case as they had previously been discharged and had never been sent up for trial by the learned Magistrate. This application was dismissed by the learned Additional Sessions Judge on 21st February, 1979. Being aggrieved by the said order, the petitioners filed the present petition for quashment, which is now before me for disposal.

3. The learned counsel for the petitioners has submitted that the two petitioners were discharged by the Magistrate on 17th November 1975 at the instance of the police. Subsequently, on 2nd February 1.976, when the challan was filed by the police in Court, the names of the petitioners were shown in column No. 2. It was further submitted that at no stage either the learned Sessions Judge or the Additional Sessions Judge had passed any regular order directing notice to issue to the petitioners to answer the charge and to stand trial under sec tion 302/307/34, P. P. C. It was further contended that the order of the learned Additional Sessions Judge dated 21st February 1979, was based on wrong premises as the learned Judge wrongly stated that the Sessions judge vide his order dated 23rd January 1978, had summoned the peti tioners and the other two co-accused for 21st February 1978, which statement is contrary to facts, as the order of 23rd January 1978, only stated that the two accused who were invariably in the judicial lock-up should be summoned and not the petitioners. In these circumstances, it was submitted that the order of the learned Additional Sessions Judge dated 21st February 1979, being passed on a wrong assumption, was illegal and, therefore, liable to be quashed.

4. The learned Assistant Advocate-General appearing for the State, opposed the petition and submitted that even otherwise the Court had authority to summon the petitioners who were placed in Column No. 2. In this connection the learned counsel relied upon Muhammad Ishaq v. The State (1979 P Cr. L J Note 96 at p. 63).

5. I have given my anxious consideration to this case. It is not doubt true that the impugned order proceeds on the assumption that the learned Sessions Judge vide his order dated 23rd January 1978, had summoned the two accused and the present two petitioners for 21st February, 1978. In fact, the learned Sessions Judge, by his order dated 23rd January 1978, only stated that the accused should be summoned from the District Jail, Kasur, for 6th February, 1978. Obviously, the petitioners were not then in judicial custody in District Jail, Kasur . They had previously been discharged. Only the case of Ameer and Liaqat Ali had been sent up to the Sessions Court for trial. The reference of the accused therefore, by the learned Sessions Judge was only intended for Ameer and Liaqat Ali. It appears that by mistake the two petitioners were summoned by notices issued by the Court. In these circumstances, the impugned order, which has been passed on a wrong assumption, appears to have been passed with material irregularity.

6. For the foregoing reasons, this application is converted into one under section 439, Cr. P. C. and the order of the learned Additional Sessions Judge dated 21st February 1979, is set aside under section 439 Cr. P. C. and the case is remanded to the said learned Additional Sessions Judge, Kasur, to dispose of the application of the two petitioner dated 15th February 1979, once again after hearing the counsel for the parties. Nothing herein contained shall debar the learned Additional Sessions Judge from formally summoning the petitioners to stand the trial under section 302/307/34, P. P. C. with the other two co-accused if he so desires, but if he should desire to do so, it should be by a proper and conscious order to that effect. 1

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