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Criminal Petition for Leave to Appeal No.5/R of 1984, decided on 18th April, 1984.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, dated 1‑2‑1984 in Cr. Revision No.93 of 1983).

‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), 5.439 read with Ss. 193(1) & 265‑K‑‑Petitioner, accused in a murder case, treated by Police as innocent and placed in column 2 of challan‑‑Sessions Court summoning accused petitioner for trial‑‑Petitioner's counsel remaining unable to advance any cogent argument for proposition that even in a proper case, if Magistrate refuses to summon such accused, Sessions Court had no power to summon him‑‑Leave to appeal refused.

Agha Aziz Ahmed, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record (Absent) for Petitioner.

Malik Rab Nawaz Noon, Advocate Supreme Court for Respondent No.2.

Date of hearing: 18th April,1984.

.‑‑ Leave to appeal has been sought from judgment dated 1‑2‑1984 of the Lahore High Court; whereby a Criminal Revision filed by the accused petitioner, was dismissed.

Learned counsel, has summarised the facts in so far as this petition is concerned as follows:‑

That the petitioner was accused in a murder case but the police treating him innocent placed him in column No.2 of the challan. The learned Magistrate nevertheless summoned him and sent him for trial before the Sessions Court. The said Court however, did not proceed against him on the ground that the trial which had already commenced in which cognizance of the case had been taken, was purported to be only against the court accused of the petitioner. The complainant party went in revision before the High Court which was allowed on 31‑1‑1983 and the case of petitioner was sent to the Sessions' Court for fresh decision. This order was not challenged by the petitioner. It was conceded from the petitioner side before the High Court then that the Sessions Court had the power to summon a person shown in column No.2 of the challan as an accused person in a case exclusively triable by such Court. After the remand the Sessions Court noted and passed the order as follows:

"For the foregoing reasons the application is accepted. The accused Mohammad Muslim was sent up by a Magistrate 1st Class, Rawalpindi. Taking cognizance under section 1.93(1), Cr.P.C. the accused Muhammad Muslim is summoned to face the trial. He is present in the Court. He is directed to appear on 28‑6‑1983 when the trial shall commence after framing the charge against him."

This order was again challenged in the High Court this time by the accused, petitioner in revision and the same having been dismissed by the High Court, he has sought leave to appeal.

Learned counsel argued that the first order of the Sessions Court of refusal to proceed against the petitioner amounted to acquittal under section 265‑K, Cr.P.C. We do not agree with him. In the circumstances of the case, as the reasons given in the order, dated 21‑7‑1979 show, it could not be treated as an order under section 265‑K, Cr. P. C. Learned counsel then contended that the Sessions Court could not summon the accused and that it was for the Magistrate to do so. But he did not press the argument for the reason firstly that in this case the petitioner was in fact initially summoned by the Magistrate,. Otherwise too he remained unable to advance any cogent argument for the proposition that even in a proper case, if the Magistrate had refused or declined to summon an accused placed in column. No.2 the Sessions Court had no power to summon him. And indeed, as noted earlier it was contrary to the position taken by the petitioner side in the High Court in the first round, and further this particularly when the petitioner failed to bring under challenge the order of remand then passed by High Court.

For all these reasons, there is no force in this petition. It is accordingly dismissed.

S.Q. Petition dismissed.

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