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Petitioner: MUHAMMAD AMIN ALIAS MUHAMMAD VS Respondent: THE STATE
1988 P Cr
1988 P Cr. L J 319
[Lahore]
Before Rustam S. Sidhwa, J
MUHAMMAD AMIN alias MUHAMMAD‑‑Petitioner
versus
THE STATE‑‑Respondent
Criminal Revision No. 452 of 1987, decided on 8th November, 1987.
Penal Code (XLV of 1860)‑‑
‑‑‑S. 302/34‑‑Criminal Procedure Code (V of 1898), Ss. 435 & 561‑A‑ Revision against order of Session Judge summoning accused to stand trial under S.302/34, Penal Code‑‑Accused stating that order of Sessions Judge was passed without recording any evidence or finding a prima facie case against him although he had been found innocent earlier and got discharged by Illaqa Magistrate‑‑Police had initially found accused innocent and got him discharged‑‑Complainant filed private complaint against accused under S.302/364/34, Penal Code before Illaqa Magistrate which was transferred to Court of Sessions and consolidated with State case against accused‑‑Both cases were based on same facts‑‑Consolidated trial was required to be held, thus either. State Challan case could have been taken up with accused and co‑accused facing trial or private complaint case against them‑‑Fact that Sessions Judge proceeded to try State Challan case, after summoning accused to face trial in said case, held, would not make his action illegal‑‑Order of Sessions Judge not suffering from any illegality, interference declined in revision.
Syed Hamid Muqeem Bokhari v. The State P L D 1985 Lah. 71 and Muhammad Yaqoob v. Muhammad Ismail 1979 P Cr. L J 428 ref.
Atta Jilani's case 1980 P Cr. L J 901 and Aziz‑ur‑Rehman's case P L D 1987 Lah. 245 rel.
S.M. Rashid for Petitioner. Sh. Ehsan Ahmad for the State. Akmal Saleemi for the Complainant.
Date of hearing: 8th November, 1987.
JUDGMENT
This is a revision petition filed by Muhammad Amin, petitioner, to set aside the order of a learned Additional Sessions Judge of Sialkot, dated 3‑8‑1987 summoning him to stand trial in the State challan case titled State v. Muhammad Boota and others under section 302/34, P.P.C.
2. On behalf of Muhammad Amin, petitioner, it is submitted that the learned Additional Sessions Judge summoned him in the State case titled State v. Muhammad Boota and others under section 302/34, P. P. C., without recording any evidence or finding a prima facie case against him, although he had been found innocent earlier and had been got discharged by the Ilaqa Magistrate, Sialkot, on 18‑12‑1985.
3. On behalf of the complainant and the State it is submitted that Khurshid, complainant, had filed a private complaint case against Muhammad Amin, petitioner, and Muhammad Boota, co‑accused, under section 302/34, P.P.C. before the Ilaqa Magistrate, which private complaint had been sent up to the Sessions and was transferred to the Court of an Additional Sessions Judge of Sialkot, who after recording the preliminary evidence of Khurshid, complainant and his witnesses, had summoned Muhammad Amin, petitioner, and Muhammad Boota, co‑accused, to face their trial under section 302/364/34, P.P.C. on 14‑10‑1986. In these circumstances it is submitted that the present revision petition is incompetent.
4. On behalf of Muhammad Amin, petitioner, it is submitted in reply that as the private complaint case had been withdrawn by Khurshid, complainant, the petitioner could not be dealt with as an accused in the State challan case in this connection the learned counsel has cited Syed Hamid Muqeem Bokhary v. The State P L D 1985 Lah. 71 and Muhammad Yaqoob v. Muhammad Ismail 1979 PCr.LJ 428.
5. I have heard the arguments of the learned counsel for the petitioner, the complainant and the State and have also perused the record. It is true that the police had initially found Muhammad Amin innocent and had got him discharged through the Ilaqa Magistrate, Sialkot, and the State challan case was only filed against Muhammad Boota, co‑accused. Later, Khurshid, complainant, filed a private complaint against Muhammad Amin, petitioner, and Muhammad Boota, co‑accused, under section 302/364/34, P.P.C. before the Ilaqa Magistrate, which was transferred to the Sessions and marked to an Additional Sessions Judge, who, after recording preliminary evidence, summoned Muhammad A min, petitioner, and Muhammad Boota, co‑accused, to face their trial under the said sections. Since both the State case and the private complaint case were based on the same facts and the only difference between the two was that in the, former case Muhammad Boota, co‑accused, had alone been challaned,' whereas in the latter case both Muhammad Amin, petitioner, and Muhammad Boota, co‑accused, had been summoned to face trial, a consolidated trial was to be held in view of the principle laid down in Atta Jilani's case 1980 P Cr. L J 901 and Aziz‑ur‑Rehman's case PLD 1987 Lah. 245. Thus, either the State challan case could have been taken up with both the accused facing their trial, or the private complaint case against both the accused. The fact that the learned Additional Sessions Judge proceeded to try the State challan case, after summoning Muhammad Amin, petitioner, to face trial in the said case, does not make his action illegal. The order of the learned Additional Sessions Judge does not suffer from any illegality.
6. There being no merit in this petition, the same is dismissed.
M . Y . H . / M‑452/ L Petition dismissed.