1997 P Cr (PLP)

This revision petition is directed against the order; dated 11-6-1996 of the learned Additional Sessions Judge, Chunian, whereby he summoned the petitioners as accused person.

2. Facts giving rise to this petition are that a case under section 302/ 34/109, P.P.C. was registered at Police Station Chhanga Manga vide F.I.R. No,321, dated 10-11-1995, against Nadim Ahmad, Ali Sher and Muhammad Saleem. The petitioners were alleged to have abetted the commission of murder of Muhammad Arshad. After due investigation, the police placed the names of Nadim Ahmad and Ali Sher in Column No.2 of the police challan whereas the name of Muhammad Saleem was placed in Column No.3 thereof. The police could not collect any incriminating evidence against the petitioners and submitted report accordingly for their discharge on 11-12-1995. The learned Magistrate agreeing with the police report discharged the petitioners. The learned Additional Sessions Judge after recording the statement of the complainant summoned the petitioners vide his order, dated 11-6-1996.

3. It is submitted by the learned counsel that the petitioners against whom the allegation is that they abetted the murder of Muhammad. Arshad, were found innocent by the local police and its finding was affirmed by the D.S.P. C.1.A. Staff, Kasur. Later on, both the petitioners were got discharged from the case by the learned Magistrate vide order, dated 11-12-1995. Learned counsel further submitted that case against three accused was sent to the Sessions Court by the Ilaqa Magistrate and the learned trial Judge was pleased to frame charge against them. The learned counsel assailed the impugned order on the following legal objections:-- (a)??????? That the learned Judge is not competent to take cognizance under section 190(1)(c), Cr.P.C. as he could take cognizance of those accused who were sent for trial? by the Magistrate under section 190(3), Cr.P.C.; (b)??????? that the learned trial Judge while summoning the petitioners nowhere said under what provision of law they are being summoned in this case, as allegation regarding abetment against the petitioners was disbelieved and they were got discharged by the learned Magistrate vide order, dated 11-12-1995; and (c)??????? that when the discharge order was passed in favour of the petitioners, then there was no case left against them; hence the learned Judge could not take cognizance against them by summoning them in the presence of the discharge order which was presumably passed under section 63, Cr. P.C. In support of these contentions, learned counsel placed reliance on PLD 1985 Lah. 71 and PLD 1986 Lah. 257. ???????????

4. I have heard the learned counsel at length and have perused the record carefully No doubt, it is correct that the Sessions Court is the only Court, which cannot take cognizance of the case directly. Under the new scheme of law, under section 190(3), Cr.P.C., the Magistrate has to send the case to the Sessions Court without recording any evidence. When the case is sent to the Sessions Court for trial, then the Court will take cognizance as laid down under section 193, Cr.P.C. read with section 190(1), sub-clauses (a), (b) and (c), Cr.P.C. The said sub-clauses are reproduced in extenso below:-- (a)??????? upon receiving a complaint of facts which constitute such offence; (b) ?????? upon a report, in writing of such facts made by any Police Officer; (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.

5. The contention of the learned counsel that there was no case against the petitioners when they were discharged by the Magistrate on the recommendation of the police under section 63 coupled with section 173, Cr.P.C., is not tenable, as the Magistrate is competent to discharge the accused under section 63, Cr.P.C., when he is taken into custody. Section 63, Cr.P.C. is reproduced below:-- "

63. Discharge of person apprehended.

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. " This section contemplates that no person who is taken into custody can be released without the formal order of the Magistrate or on taking the bond by the S.H.O. under section 169, Cr.P.C. In the present case, the police recommended for the discharge of the petitioner and the learned Magistrate in exercise of his powers under section 63, Cr.P.C. discharged the petitioners, but the case remained intact, because in the same F.I.R. three persons were sent to the learned Judge for trial. The Magistrate while passing order under section 63, Cr.P.C. acts as an administrative officer and no finality or irrevocability is attached to the said order. The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order' render himself functus officio. Even the Court under section 190(1)(c); Cr.P.C. is competent to take action against the accused so discharged, if it comes to the conclusion upon information, knowledge or suspicion that there existed sufficient grounds for so doing. Reference in this connection be made to PLD 1985 SC

62. The F.I.R. can only be cancelled under Rule 25.7 of Police Rules, which says that "when information or other intelligence is recorded under section 154, Cr.P.C. and, after investigation, is found to be maliciously false or false owing to mistake of law or fact or to be non-cognizable or matter for a civil suit, the Superintendent shall send the first information report and any other persons on record in the case with the final report to a Magistrate having jurisdiction and being a Magistrate of the first class, for order of cancellation. On receipt of such an order, the officer-in-charge of the police station shall cancel the first information report by drawing a red line across the page noting the name of the Magistrate cancelling the case with number and date of order, He shall then return the original order to the Superintendent's office to be filed with the record of the case." If the F.I.R. is cancelled, then of course, no further investigation can be conducted unless that order is set aside, but in the present case, two accused were placed in column No.2 and one accused was placed in column No.3 of the challan, The learned Judge following the procedure, under section 265-D, Cr.P.C., framed the charge against the three accused. Thereafter he recorded the statement of the complainant as P. W.1, wherein he deposed that the petitioners abetted the crime, whereupon the learned Judge vide impugned order summoned the petitioners. When I asked the learned counsel under what provision of law, the learned Judge summoned the petitioners he failed to give any answer. The perusal of clause (c) of section 190(1), Cr.P.C., shows that the Court can summon an accused person upon information, knowledge or suspicion. In the present case, the learned Judge recorded the statement of the complainant who mentioned the names of the petitioners as abettors, so there was information before the learned Court, The case reported as PLD 1986 Lah, 257, is distinguishable, because in that case a private complaint was filed, on which the learned Judge without recording the summary evidence summoned the accused and thus he exercised powers under section 190(1)(b), Cr.P.C. In the present case, as mentioned earlier, the learned Judge exercised his powers under clause (c) of section 190(1), Cr.P.C,, which gives very vast powers to the Court to summon a person as an accused upon information, knowledge or on suspicion. The case reported as PLD 1985 Lah, 71, is distinguishable do facts. In this care, the learned Magistrate rent up all the other accused to face trial before the Sessions Court, but so far as the petitioner Hamid Muqeem Bokhary was concerned, the learned Magistrate observed that he had been discharged, as he war found innocent by the Investigating Agency and further that he had been falsely Implicated, The teamed Judge decided the sold care on the ground that the learned Advocate-General agreed that there war no material whatsoever against the said petitioner when he was summoned as an accused person, On that score the learned Judge upset the order holding that even otherwise no material had been brought on the record between the taking of cognizance by the learned Sessions Judge and the passing of the impugned order by the learned Additional Sessions Judge, so as to justify the summoning of the petitioner,

6. In the present case, as observed earlier, the learned Judge passed the impugned order after recording the statement of the complainant, though technically it cannot be taken as evidence. Anyhow it falls in the category of information, as the learned Judge has exercised his powers under clause (c) of section 190(1), Cr.P.C. hence the impugned order is not open to any legal exception. The petition is accordingly dismissed in limine. N.H.Q./T-10/L??????????????????????? ??????????????????????????????????????????????? Revision petition dismissed