P L D 1988 Lahore 336 (PLP)

This will dispose of Criminal Revision No. 866 of 1985. They have arisen in the following circumstances.

2. On the report of Muhammad Rafiq son of Hall. Faqir Muhammad made at 4 p.m. on 23‑9‑1984, a case under section 302, read with section 34 of the P.P.C., was registered against Waqarul Haq, Muhammad Ejaz and Muhammad Rafiq son of Ali Muhammad. The case was investigated into first by Muhammad Siddiq A.S.I., then by Asghar Ali S.I. and then by the A.S.P../S.D.P.O. They found Waqarul Haq and Muhammad Ejaz innocent of the offence and recommended their names to be placed in column No.2 of the challan. Thereafter, the investigation of the case was carried out by the A.S.P., Multan; he too was of the opinion that the petitioners were innocent of the offence and that their names should be placed in 'column No.2 of the challan. There was then another investigation by a D.S.P. of the Crimes Branch. He was also of the same opinion. In the light of this consistent finding of the Investigating Officers, a report under section 173, Cr.P.C. was filed in the Court of Illaqa Magistrate on 1‑8‑1985. In that report the names of these accused were shown in column No.2 of the challan and the name of Muhammad Rafiq son of Ali Muhammad was shown in column No..3 of the challan. Simultaneously with the report under section 173, Cr.P.C. an ,application was made by the S.H.0., Police Station, Jahanian, to the illaqa Magistrate praying that the said accused should be discharged. Accordingly, the learned Illaqa Magistrate vide his order dated 1‑9‑1985 'observed that it was not proper to keep the petitioners in custody and directed them to be discharged under section 63, Cr.P.C. At the date of the urder, WaqaruI Haq, petitioner, was it, jail and Muhammad Ejaz, petitioner, was on bail. he directed the release of Waqarul Haq from prison and discharged Muhammad Ejaz of his bail bond. by another order dated 1‑12‑1985, the learned Illaqa Magistrate sent the case to the Court of Session for trial.

3. The case was entrusted for trial to a learned Additional Sessions Judge, Khanewal, who by his order dated 17‑11‑1986 made the following order: ‑ "Let the accused be summoned for trial of the case on 24‑11‑1986. " On 1‑12‑1986, the learned Additional Sessions Judge noticed that the said accused had failed to appear to face trial; instead they had attached a photo copy of "discharge report, 11 He then made the following order. "Record perused. Heard. since the aforesaid two accused have been implicated in the offence, therefore, bailable warrants in the sum of rupees ten thousand each with one surety each be issued against them for 6‑12‑1986. 11 It should be noted here that on 1‑12‑1986, when this order was made, Muhammad Rafiq accused was present in custody and on behalf of the State Mr.Manzoor Ahmad D.D.A. was present before the learned Additional Sessions Judge.

4. While Waqarul Haq and Muhammad Ejaz, petitioners in Criminal Revision No.210 of 1986 are aggrieved by the learned Additional Sessions Judge's order dated 1‑12‑1986, the petitioner in W.P. No.866 of 1985, Muhammad Rafiq, complainant, ‑is aggrieved by the learned Illaqa Magistrate's order dated 1‑9‑1985 whereby the petitioners in Criminal Revision No.210 of 1985 were discharged.

5. In this order the petitioners in Criminal Revision No.210 of 1986 will be described as the petitioners and the petitioner in W.P. No.866 of 1985 will be described as the complainant.

6. For the petitioners, it is argued that the order of the learned Illaqa Magistrate dated 1‑9‑1985 was an order under section 173, subsection (3), Cr.P.C., that as by that order the petitioners had been discharged as accused persons, the learned Additional Session Judge was not competent to take cognizance of the case against the petitioners and to summon them to stand their trial. Learned counsel for the complainant on the other hand maintained that the Court takes cognizance of the offence and not of a particular accused and once the case has been sent up to the Court of Session, the Court of Session is competent to summon any person to stand his trial.

7. Under section 169, Cr.P.C., if upon an investigation under Chapter XIV, it appears to the Investigating Officer that there is not sufficient evidence or reasonable ground of suspicion to Justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties,. as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or send him for trial. Section 170 of the Cr.P.C. provides that if, upon an investigation under Chapter, XIV, it appears to the officer incharge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon police report and to try the accused or send him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to clay before such Magistrate until otherwise directed. Section 173 of the Cr.P.C. provides that every investigation shall be completed without unnecessary delay, and as soon as it is completed, the officer incharge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused, if arrested, has been released on his bond, if so, whether with or without sureties. By subsection (3)' of section 173, the Magistrate is empowered, when it appears from a report forwarded under this section that the accused has been released on his bond, to make such order for the discharge of such bond or otherwise as he thinks fit. Then comes sections 190 and 193 of the Cr.P.C. Section 190 empowers a Magistrate to take cognizance of any offence: (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police office; (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. Subsection (3) of section 190 provides that a Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall. without recording any evidence, send the case to the Court of Session for trial. Section 193 lays down that except as otherwise expressly provided by the Code of Criminal Procedure or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has beer sent to it under section 190, subsection (3).

8. As the learned Illaqa Magistrate had in making his order dated 1‑9‑1985 purportedly acted under section 63, Cr.P.C. the provisions of that section may also with advantage be noticed here. That section occurs in Chapter V which makes provisions relating to the arrest, escape and retaking of persons. Section 63 says that "no person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate".

9. It will be noticed that the ;k ~k rd "discharge,' occurs in section 63 as also in section 173, subsection (3), in sec‑ion 63 in relation to an arrested person and in section 173, subsection (3) in relation to a bail bond. It is obvious, therefore, that it has been used in different senses in the two contexts and that in section 63 it has been used in the sense of releasing the person arrested.

10. Reference may also be made to rule 24'.7 of the Punjab Police Rules, 1934, framed under section 46 of the Police Act, 1861, which specially deals with the cancellation of cases. It is as follows: ‑ "Unless the investigation of a case is transferred to another police station or district, no first information report can 'be cancelled without the order of a Magistrate of the Ist Class. When information or other intelligence is recorded under section 154, Criminal Procedure Code, and after investigation, is found to be maliciously false or false owing to mistake of law or facts or to be non‑cognizable or matter for a civil suit, the Superintendent shall send the first information report and any other papers on record in the case with the final report to a Magistrate having jurisdiction and being a Magistrate of the first class, for orders of cancellation. on receipt of such an order the officer‑incharge,‑ of the police station shall cancel the first information report by drawing a red line across the page, noting the name of the Magistrate canceling the case with number and date of order. He shall then return the original, to the Superintendent, office to be filed with the record of the case. It is also pertinent to note that in the Police Rules a report under section 170 of the Cr.P.C. is described as charge‑sheet and a report under section 173 of the Cr.P.C. is described as the final report.

11. For the purposes of this revision petition, cases may be divided into three categories: (i) cases in which upon police investigation, it is found that the case against the accused person or if there be (Fazal Karim, J) more than one, against all of them is maliciously false or false owing to mistake of law or fact or to be not cognizable or matter for a civil suit and a final report under section 173, Cr.P.C. is sent to the Magistrate and his order is obtained under subsection (3) thereof for the cancellation of the F.I.R.; (ii) cases in which there are more than one accused persons and it is found that some of them are guilty and others are innocent and while the names of those found guilty are placed in column No.3, the names of those found innocent are placed in column No.2 of the final report and (iii) in cases falling under category (ii), the names of those found innocent are placed in column No.2 and simultaneously an order of the Magistrate ,is obtained discharging them.

12. There has been a controversy whether the order of the Magistrate made in regard to persons falling within the category (i) was a judicial and hence a revisiable order of an administrative and hence an unrevisabie order. It was held in Wazir v. The State P L D 1962 (W.P.) Lahore 405 (F.B.) that such an order is an administrative order and, therefore, the Magistrate making it is not an "inferior criminal Court within the meanings of sections 435 and 439, Cr.P.C. This view has been confirmed in Bahadur and another v. The State P L D 1985 Supreme Court 62 and the controversy must now be taken to have been set at rest. As to the persons falling in category (ii), whose names have been placed in column No.2, it has been held in Raja Khushbukhtur Rehman and another v. The State 1985 SCMR 1314 that "under section 190 (3), Cr.P.C. the Magistrate takes cognizance of an offence and not of an offender. He takes cognizance of the cast: as a whole and nut qua wily some of the accused found by the police to be implicated in the case. Cognizance can be taken even if the offenders be unknown . This legal position stands already explained by this Court in Mehar Khan v. Yaqub Khan 1981 'S C Ni R 267 in the words: ....... even under the recently substituted subsection (3) of section 190, Cr.P.C., a Magistrate who takes cognizance of any offence under any of the clauses of subsection (1) of that section, is required to apply his mind in order to ascertain as to whether the case in question is one which he is required to 'send' for trial to the Court of Session or whether it is one which he can proceed to try himself." Once the Magistrate has taken cognizance of the offence exclusively triable by the Court of Session, he has to send the case to that Court and it is not open for him to send the case only qua those of the accused who are placed in column No.3 of the challan.

13. The facts in Raja Khushbukhtur Rehman's case were that, according to the F.

1. R. , Nazir accused had, at the lalkara of Shehbaz and Khushi Muhammad, fired at and killed Gharib Alam, deceased, with a .12 bore pistol. Nazir accused was apprehended at the spot while Shehbaz and Khushi Muhammad managed to make good their escape in a jeep driven by Muhammad Shafique accused. It was said that the murder was the result of collusion and conspiracy with Raja Khushbukhtur Rehman and Muhammad Shafique petitioners before the Supreme Court. In the challan, both the petitioners, Raja Khushbukhtur Rehman and Muhammad Shafique, were shown in column No.2 as a result of the police investigation as they were found to have been falsely involved on account of long standing enmity. The investigation, however, revealed the complicity of another accused, namely, Manzoor Ahmad, who had not been cited in the F.I.R. and accordingly his name along with that of Nazir and Shehbaz was placed in column No.3. Dissatisfied with the result of the police investigation, Qutab Hussain, complainant, filed a complaint which was entrusted to a Magistrate under section 202, Cr.P.C. According to his report, there was no credible evidence against Raja Khushbukhtur Rehman and Muhammad Shafique but a prima facie case was found against Nazir, Shehbaz and Khushi Muhammad. The challan case was sent to the Court of Session and the learned Additional Sessions Judge, who was entrusted with the case, summoned not only the three accused persons shown in column No.3 but also those who had been placed in column No.2. Those persons challenged the order of the learned Additional Sessions Judge but their petition was dismissed by the High Court. It was contended that the Magistrate had sent the case to the Court of Session in a mechanical manner without applying his mind and that the trial Court was not competent to issue process to the petitioners who had been placed in column No.2 of the challan. It was held that the trial Court was possessed of the power to summon the petitioners whose names had been placed in column No.2.

14. The question is, is the case of accused persons falling ir. category (iii) in any way different from the accused persons falling in category (ii) who were found innocent and whose names were placed in column No.2 Does the fact that the order of the Magistrate discharging them was obtained places the accused persons in category (iii) on a higher footing than those who were like them found innocent by the police, yet no order of discharge was obtained in respect of them?

15. Learned counsel for the petitioners argued that the words "empowered to take cognizance of the offence upon police report and to try the accused or send him for trial in section 170, Cr.P.C. have to be given meaning, and that the effect of an order of discharge should be that the Magistrate will not try the discharged accused or if the case is exclusively triable by the Court of Session will not send him for trial to that Court and that in regard to such an accused person, the Magistrate has not taken cognizance of the case and sent him for trial to the Court of Session. This, it was argued, will save the above quoted words from redundancy and also give effect to the legislative intent manifested by the provisions of Chapter XIV investing the police with the power to investigate for the purpose of ascertaining whether any case is made out for sending up an accused for trial.

16. Learned counsel for the petitioners cited three cases, namely, Bashir Ahmad v. Illaqa Magistrate, Jaranwala and 4 others P L D 1980 Lahore 28, Syed Hamid Muqeem Bokhary v. The State P L D 1985 Lahore 71 and Muhammad Ibrahim and others v. Qudrat Ullaf, Ruddy and others P L D 1986 Lahore 256 in support of this view‑point, In Bashir Ahmad's case, the respondents were named as culprits for the murder of one Abdus Sattar in the F.I.R. During the investigation, they set up a different version which was accepted. In the final report under section 173, Cr.P.C. a different set of persons was challaned and recommendations were made for the discharge of the respondents. Concurring with the police report, the Magistrate discharged the respondents. The question raised was that the offence, being. triable exclusively by the Court of Session, whether the Magistrate was competent to discharge the accused persons. It was held that the Magistrate was competent and it was in that context that it was held that the order discharging the respondents "in its true import is tantamount to the cancellation of the case against them." In Syed Hamid Muqeem Bokary's case also, the case was registered under sections 302, 148 etc. of the Cr.P.C. against Syed Hamid Muqeem Bokhary petitioner and others. The police found the petitioner innocent of the offence and recommended the cancellation of the case against him. On the recommendation of the police, the learned Magistrate "sent up other accused to face their trial before the Sessions Judge, Sheikhupura. As far as the petitioner was concerned, the learned trial Magistrate observed, that the petitioner had been discharged, as he was found innocent by the Investigating Agency and further, that the petitioner had been falsely implicated. It was held that "this was a case in which the petitioner had been, found innocent, and therefore, the respondent if aggrieved could file a complaint, instead of insisting upon the summoning of the petitioner as an accused on account of confusion in the report submitted under section 173, Cr.P.C. and that it was unnecessary for the learned Magistrate, as well, to have passed any order except to cancel, the case with regard to the petitioner, "because making any further observation with regard to a person who had been found innocent, by the investigating agency, in my view, would be redundant." In Muhammad Ibrahim v. Qudrat Ullah Ruddy, a case under sections 302, 307 etc. of the P.P.C. was registered on the complaint of Quorat Ullah against 24 persons. As a result of investigation, four persons named in the F.I.R. and two other persons, who were not so named, were found guilty of the offence and a challan was ultimately filed against the said six persons on 20‑2‑1983 and the remaining twenty persons, .‑named as accused in the F.I.R., were placed in column No.2 of the Challan. On 5‑5‑1983, Qudrat Ullah Ruddy, complainant, filed a private complaint against all the accused persons, named in the F.I.R; this complaint was also sent to the Court of Session. Before the inquiry could proceed on the private complaint, the challan case was summoned by the Military Court for determining whether the same should be tried by a Military Court. Ultimately, the case was sent back for trial by the regular Court. On 4‑12‑1984, both the cases were ordered to be placed before a learned Additional Sessions Judge. On 5‑12‑1984, the learned Additional Sessions Judge summoned all the twenty‑six persons to face trial. On 22‑12‑1984, fifteen accused persons made an application before the learned Additional Sessions Judge praying that as they had been got discharged from a Magistrate:. there could not be summoned. On 9‑3‑1985, the learned Additional Sessions Judge held that as the complaint case had to be taken up first, it would not be proper for him to decide that application and adjourned the application sine die saying that the said petitioners could be summoned subsequently if the State case was taken up later. Later, the complainant withdrew his complaint. The successor Additional Sessions Judge issued notices to the parties arid on 12‑1‑1986 he recalled his predecessor's order dated 5‑12‑1984, holding that if, after recording some evidence in the State case, he came to the conclusion that there was material against the petitioners, he would summon them. On 18‑2‑1986, the said case was taken up, and the charge was framed against the six accused persons, whose names were placed in column No.3 of the challan. The evidence of Qudrat Ullah Ruddy, complainant, was recorded partially, but before the examination-in-chief could be concluded, the Public Prosecutor filed a petition praying that all the accused be summoned to face their trial. This prayer was allowed. It was against this order of the learned Additional Sessions Judge that a revision petition was filed. It was held that the order of the learned Additional Sessions Judge dated 18‑12‑1986, summoning the petitioners and others to face their trial deserved to be set aside because the evidence of Qudrat Ullah Ruddy, complainant, consisted, as it did, of his examination‑in‑chief only, was no evidence and "one would imagine that he would have allowed his examination‑in‑chief and cross‑examination to be completed and also examined some further witnesses." Accordingly, the order dated 5‑12‑1984 summoning all the accused persons to face their trial and the order dated 18‑2‑1986 by which the learned Additional Sessions Judge had summoned the accused who had earlier been discharged, on the mere examination‑in‑chief of Qudrat ullah, Ruddy, complainant, were set aside

17. It seems to me, however, that the matter, is concluded by the dicta in Raja Khushbukhtur Rehman's case. There, as in the present case, the petitioners were persons whose names were placed in column No.2 of the challan. The learned Magistrate had taken cognizance of the offence and had sent the case, including the case of the petitioners, C to the Court of session; it was field that it was not open to the ,Magistrate to send the case only qua the accused persons whose names were placed in column No.3 of the challan, and therefore, the learned trial Judge was fully competent to summon the petitioners of accused persons. One may conceive of a case in which a person accused has not only been found innocent and discharged by the Magistrate's order, but also whose name does not occur anywhere in the police report, either in column No.2 or column No.3 but that is not the case here. The petitioners' names were, despite the order of the Magistrate discharging them, placed in column No.2 of the challan and their case was, therefore, clearly within the rule laid down in Raja Khushbukhtur Rehman's case. The order of discharge made in respect of them was an order under section 63, Cr.P.C. But even if it were an order under section 173, subsection (3), or is treated as an order under that provision, the fact remains that, as in the case of Raja Khushbukhtur Rehman, their names found mention in column No.2 of the challan and the learned trial Judge, therefore, acted within his jurisdiction in summoning them to stand their trial. The making of an order under section 1730), Cr.P.C. could not affect the jurisdiction of the learned Court, for, such an order, to quote from Bahadur v . State P L D 1985 S C 62 is an administrative order and when the Magistrate makes it "there is no lis before him; there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order" . To put it differently, the making of the order under section 173(3),,Cr.P.C. does not involve and the order is not made, in the course of, any lis inter partes; it cannot therefore create res judicata.

18. Raja Khushbukhtur Rehman's case is, in my opinion, also authority for the view that for summoning an accused person who name appears in column No.2 of the challan, it is not necessary for the learned trial Judge to record some evidence.

19. I would, therefore, dismiss the petitioners' revision petition.. As the petitioners have been summoned by the learned Judge to 'stand their trial' and that order should, in my view, be maintained, the complainant's writ petition also fails and is dismissed. M. B. A. / W-27/L. Petition dismissed.