S.S.SANDHAWALIA, J.

1. Whether the Court of Session, without itself recording evidence, can summon a person to stand trial as an accused (along with others committed to it by a Magistrate) on the basis of documents in the final report of the Investigating Officer under sec. 173 of the Code of Criminal Procedure, 1973 independently of the provisions of sec. 319 of the said Code? Whether the substitution of sec. 319 of the new Code in place of sec. 351 of the old Code has wrought any radical change in the law on the point aforesaid? This is the significant twin question necessitating this reference to the Full Court.

2. As is apparent, the issue aforesaid is pristinely legal and the facts would, consequently, pale into relative insignificance. Therefore, a skeletal background thereof would amply suffice. Regretfully it must be noticed that the occurrence giving rise to the issues took place more than 11 years ago in the night of the 7th of February, 1974. On the following morning at about 1 a.m. a first information report under sec. 395 of the Indian Penal Code was recorded, in which the three petitioners along with Jabbar Khan and S.K. Samad were specifically named. However,