2005 PLP 2338 (YLR)

The learned counsel has filed this criminal revision against the order dated 8-6-2005 of the learned Addl. Sessions Judge, Kasur in case titled, "State v. Saleem, etc.". The petitioner was named in F.I.R. No.100 of 2004 under sections 302, 109, 34, P.P.C. at Police Station, Ganda Singh Wala, Kasur, but was declared innocent in successive investigations, therefore, the petitioner was not challaned by the police. However, the learned Additional Sessions Judge/trial Court summoned him to face the trial vide his order dated 22-3-2005. The petitioner appeared before the Court and charge was also framed. The petitioner moved an application under section 191, Cr.P.C. before Court of competent jurisdiction, but his application was dismissed vide order dated 8-6-2005 which is impugned before this Court in the instant criminal revision.

2. The main ground of the learned counsel was that the petitioner was declared innocent by all the Investigating Officers and he had an option under section 191, Cr.P.C. to be tried by the same Court or another Court, this right was not given to the petitioner by the learned Additional Sessions Judge vide impugned order. The learned counsel believes that the learned Additional Sessions Judge took cognizance under section 190(1)(c), Cr.P.C.

3. The learned Additional Sessions Judge, Kasur dismissed the application of the petitioner on the ground that section 191, Cr.P.C. is applicable in those cases wherein a Magistrate takes cognizance of an offence under sub-section (1) clause (c) of section 190, Cr.P.C. whereas, he took cognizance of the case under section 190(1)(b), Cr.P.C. The view of the learned Addl. Sessions Judge is given in para.8 of the impugned order which is reproduced as under:-- "It is noteworthy that section 191, Cr.P.C. deals with the situation when the Magistrate takes cognizance of an offence under subsection (1) clause (c) of section 190, Cr.P.C. and it is provided in the section 191, Cr.P.C. that that the Magistrate shall ask an offender that he is informed that he is entitled to have the case tried by another Court. It is appropriate to reproduce subsection (1) clause (c) of section 190, Cr.P.C. as under:

190(1) Except as hereinafter provided (any Judicial) Magistrate specially empowered in this behalf by the Provincial Government on the recommendation of (High Court) may take cognizance of any offence. (a)

(b)

(c) Upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed." It is worth mention that the proceedings have not been initiated against the accused and other co accused upon the information received from any person other than police officer or upon the knowledge or suspicion. In this way, provisions of section 191, Cr.P.C. are not applicable in the instant case. I am guided by the case-law cited as 2002 SCMR 63 , wherein Honourable Supreme Court of Pakistan held as under:-- Ss. 190, 191 and 173:

Cognizance of offence by Magistrate while taking cognizance under section 190(1)(b), Cr.P.C. on a police report takes cognizance of the offence and not merely of a particular person charged in the report as an offender

Magistrate, therefore, can issue process against other persons who also appear to him to be concerned in the commission of the offence on the basis of the police report and other material placed before him and in doing so Magistrate does not act under clause (c) of section 190(1), Cr.P.C. and section 191, Cr.P.C, is not applicable." Moreover, there is no specific provision of law available in the Criminal Procedure Code while taking cognizance in Sessions trial to provide the opportunity to exercise the option by an accused who is summoned by the Court to face the trial. The accused Saifullah entered into appearance on 30-3-2005 and the instant application has been filed by him on 28-5-2005. It seems that the instant application has been moved just to prolong the. proceedings."

4. Before giving my verdict, I would like to refer case-law referred by the learned counsel for the petitioner.

5. The first case is Abdus Sattar Moola v. Crown PLD 1953 Federal Court

145. In this case, it was held that when a case is initiated on the basis of investigating in F.I.R., it cannot be suggested that a Magistrate or trial Court is acting under section 190(1)(c) of the Cr.P.C. upon information received from a person other than police officer or upon his own knowledge or suspicion. Therefore, in such cases, section 191, Cr.P.C. also is not applicable. For exact guidance the interested reader may. read para.2 of pages 148 and

149. The other citation is 1997 PCr.LJ

953. In this case, the learned trial Court after recording of some evidence proceeded to issue process under section 190(1)(c), Cr.P.C. therefore, the High Court directed that procedure in section 191, Cr.P.C. be followed. The third judgment is 1983 SCMR

16. In this judgment, Abdus Sattar Moola v. Crown PLD 1953 Federal Court 145 was reiterated and it was held, "a close scrutiny of the judgment in the last mentioned case., has also the judgment relied upon by the learned counsel for the petitioner shows that the benefit of the errors committed by the trial Court taking cognizance of the offence under section 190(1)(c) of the Cr.P.C. is not complying with the provision of section 191, Cr.P.C. was made available only to the accused the cognizance of whose case was taken under section 190(1)(c), Cr.P.C. and not to any other accused."

6. I have failed to understand how the above three judgments referred by the learned counsel help him? In Abdus Sattar v. Crown, it was clearly laid down that when a case is instituted on the basis of a F.I.R., it cannot be treated as taking cognizance under section 190(1)(c) of the Cr.P.C. as it is contended by the learned counsel for the petitioner in instant case. As a matter of fact, in the instant case, the cognizance has been taken by the learned Additional Sessions Judge on material submitted before him through a final report of the Investigating Officer under section 173, Cr.P.C. The learned Additional Sessions Judge has exercised his jurisdiction to take cognizance on basis of material collected by the Investigating Officer during the investigation. In such like cases whether it is a Magistrate who received the challan or a trial Court including Additional Sessions Judge is fully competent to take cognizance or refuse the same. Recently, a Full Bench of this Court in (Khizar Hayat v. Inspector-General of Police Punjab PLD 2005 Lah. 470) has A surveyed the whole case-law on the subject and held that police have no authority under the law to declare a person innocent or guilty. The Honourable Judges have also held that a Magistrate or a trial Court can form its opinion regarding sufficiency or otherwise of the evidence and material in order to decide whether to take cognizance of the offence and of the case or not, to summon any person to face a trial or not and to frame a charge against a person or not. The relevant portion is given on page 56 of the judgment [545 of the Report] which for convenience is reproduced as under: -- "We may clarify here for the benefit of all concerned that an Investigating Officer of a criminal case is not to render any opinion regarding guilt or innocence of an accused person and under the relevant statutory provisions contained in the Code of Criminal Procedure, 1898, the Police Order, 2002 and the Police Rules, 1934 he is only to collect all the relevant evidence and to submit his report and the collected evidence and material before the relevant Magistrate so that the Magistrate or the trial Court can then form their own independent opinions regarding sufficiency or otherwise of the evidence and material in order to decide whether to take cognizance of the offence and of the case or not, to summon any person to face a trial or not and to frame a charge against a person or not. We may further clarify that Column No.2 of the challan submitted in a criminal case is generally misunderstood and the same is erroneously being construed as meant for those accused persons who are found by the police to be innocent. It is generally being ignored that the said column of the challan is to contain the names of the absconding accused persons against whom challan is not being submitted because they could not be associated with the investigation and is also to contain the details of the accused persons being forwarded in custody or released on bond with or without sureties " Following above, it is declared and observed that the learned Additional Sessions Judge took cognizance of case F.I.R. No.100 of 2004 of Police Station, Ganda Singh Wala and not of persons. It is also held that the cognizance was taken under subsection (1)(b) of section 190, Cr.P.C. Section 191 is only attracted in cases where cognizance is taken under subsection (1)(c) of section 190, Cr.P.C. Therefore, following the above discussion, A this criminal revision is dismissed at limine stage and declared to be unfounded, frivolous and misconceived. M.B.A./S-386/L Petition dismissed.