2002 SCMR 63 (PLP)

4. Malik Rabnawaz Noon, learned Advocate Supreme Court appeared for caveators and has supported the impugned judgment being free from any illegality or infirmity by arguing that the order passed by Ilaqa Magistrate dated 8‑11‑1997 was laconic as proper opportunity of hearing was not provided to the respondents and discharge order has been passed in a cursory and slipshod manner which resulted in serious miscarriage of justice. It is also contended that the names of the respondents were shown in Column No.2 of the challan and thus, they could not have been summoned to face the trial without recording the evidence establishing that a prima facie case is made out against them. In order to substantiate his version case titled Muhammad Sharif v. State (1997 SCMR 304) has been referred.

5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have also examined order of learned Ilaqa Magistrate passed on 8‑11‑1997 which is reproduced hereinbelow for ready reference:‑‑

6. A bare perusal of the said order would reveal that entire record has been examined including the statements of complainant; prosecution witnesses and F.I.R. and thus, it can be inferred safely that the same has not been passed in a mechanical manner or arbitrarily. It may not be out of place to 'mention here that learned Ilaqa Magistrate was not supposed to pass an exhaustive order for the simple reason that he was not deciding the case at all and, therefore, it was not obligatory for him to dilate upon each and every aspect of the matter which fails within the jurisdictional domain of learned trial Court. It is well‑settled by now that the Magistrate can take cognizance of an offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents: There is no cavil to the proposition that the accused placed in column No.2 of challan cannot be summoned by the learned trial Court to face the trial and there is no legal bar whatsoever that at first instance the evidence should be recorded to ascertain as to whether the prima facie case is made out against them. In this regard reference can be made to case titled Waqarul Haq v State (1988 SCMR 1428). Malik Rabnawaz Noon learned Advocate Supreme Court could not mention any provision in Cr.P.C. in support of his contention that evidence should have been recorded prior to summoning the respondents whose names were admittedly placed in column No.2 of the challan. In this regard we are fortified by the dictum as laid down in case titled Falak Sher v. State (PLD 1967 SC 425) which has been followed in various judgments passed by this Court and relevant portion whereof is reproduced hereinbelow for ready reference:‑‑ "In our opinion, the action of the Magistrate in issuing summ6ns to these appellants despite the fact that the Investigating Officer it; his report under section 173, Cr.P.C. placed their names in column No.2, was clearly correct. Section 173, Cr.P.C. is in these terms:‑‑ "173(1). Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the Officer Incharge of the police station shall‑‑. (a) forward to a Magistrate empowered to take cognizance of the offence on a police 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 forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and (b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. (2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the Officer Incharge of the police station to make further investigation. (3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (4) .. Under subsection (1), when the investigation is completed the police officer is required to forward to the Magistrate a report in the prescribed form. Under subsection (3) when it appears from the report forwarded under section 1, that the accused has been released on his bond 'the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit"'. It is clear that under section 3 a Magistrate may agree or may not agree with the police report. It, however, does not say what step the Magistrate should take if he disagrees with the police report. If the Magistrate wants to start a proceedings against the accused, he must act under section 190 of the Code of Criminal Procedure. Section 190 provides that a Magistrate may take cognizance of any offence (a) upon a complaint (b) upon a police report, or (c) upon information received by himself. Now, the question is, if he disagrees with the report, can he take action under clause (b) against those whose names have been placed under column 2 of the challan. As already pointed out, the Magistrate is not bound by the report submitted by the police under section

173. When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the Investigating Officer. There is nothing in section 190 to prevent a Magistrate from taking cognizance of the case under clause (b) in spite of the police report. This. Court in the case of Sardar Ali and others v. The State P.S.L.A. No.66 of 1966, while dealing with a similar question, observed:‑‑ Reference to section .173, Cr.P.C., which prescribes the details that must go into a police report of the relevant kind shows that the requirements are of a factual nature, so that, irrespective of the Investigating Officer's opinion, a Magistrate takes cognizance on a police report, when he proceeds against a person whose name is mentioned therein as one accused of the offence reported upon." In conclusion, we may observe that this has been the consistent view of the High Court of West Pakistan and that Court has correctly interpreted the meaning and scope of sections 173 and 190 of the Code of Criminal Procedure in Muhammad Nawaz Khan v. Noor Muhammad and others (PLD 1967 Lah. 176)." A similar proposition was discussed in case titled Muhammad Akbar v. State (1972 SCMR 335) as under:‑‑ "Even on the first report alleged to have been submitted under section 173, Cr.P.C., the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cognizance, if upon the materials before him he found that a prima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of section 1900)(b) of the Code of Criminal Procedure. The view finds support from a decision of this Court in the case of Falak Sher v. State (PLD 1967 SC 425). "

7. The implications of section 173, Cr.P.C. were also discussed in case titled Saeed Muhammad Shah v. State (1993,SCMR 550) wherein it was held as under: "Report of Police Officer under section 173, Cr.P.C. is merely an information of the Police Officer and the same is not admissible in evidence. Presumption of innocence of accused involved in such report is not diminished by mere fact that the case has been sent up for trial or that particular witness or person had formed opinion against the accused. " The said view also finds support from case titled Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736). An identical issue remained subject of discussion in case titled Khushbakhtur Rehman v. State (1985 SCMR 1314) whereby it was concluded as follows:‑‑ "

6. Before us, too, learned counsel for the petitioner reiterated the contentions that application of mind being a prerequisite of taking cognizance; the Magistrate, who had acted mechanically and without application of mind in sending the case to the Court of Session, could not be said to have legally taken cognizance of the case. In this connection, he urged that the case against the petitioners, who had been found innocent by the police could not have been sent alongwith that of the other accused without express reasons. The arguments addressed by learned counsel in fact showed that he laboured under the impression that cognizance is to be taken of an offender, but that is not the law. Under section 190(3), Cr.P.C. the Magistrate takes cognizance of an offence and not of an offender. He takes cognizance of the case as a whole and not qua only some of the accused found by the police to be implicated in the case. Cognizance can be taken even if the offenders be unknown. On taking cognizance of the offence the Court acquires jurisdiction over all the persons involved and not only over persons against whom the challan is submitted. The word cognizance is a term of art implying application of mind to the facts of a case in order to determine whether the facts disclosed constituted an offence triable. Application of mind for the purpose of cognizance under section 190(1) and (3) read with section 193 Cr.P.C., is for the purpose of determining whether the facts disclosed the commission of an offence triable exclusively by the Court of Sessions, in which case the Magistrate is bound to send the case to the Court of Session for trial. This legal position stands already explained by this Court in Mehar Khan v. Yaqub Khan 1981 SCMR 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 of 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. The order of the Magistrate shows that the challan had been before him when he ordered the sending of the case to the Court of Session. The contention that he had not applied his mind to the facts of the case is thus devoid of merit. As regards the power of the trial Court to summon the petitioners, who had been placed in column No.2 learned counsel does not deny that the trial Court is possessed of such power. He contended that the trial Court had not taken proper note of the fact that the petitioners had been found guilty neither by the police nor by the Ilaqa Magistrate to whom the case had been referred under section 202, Cr.P.C. The learned Judge in his order, date 3‑10‑1978 has given reasons for summoning the petitioners. He had perused the record before him. His order summoning the petitioners thus, suffers from no legal infirmity. It is to be noted that the petitioners had dropped their objection to the issue of process against them by withdrawing their Criminal Miscellaneous No. 992‑M of 1982. "

8. It is well‑entrenched legal principle that "when a Magistrate takes cognizance under section 190(l)(b) on a police report he takes cognizance of the offence and not merely of a particular person charged in the report as an offender. He can, therefore, issue process against other persons who also appear to him on the basis of the report and other material placed before him when he has taken cognizance of the case, to be concerned in the commission of the offence when he does so he does not act under clause (c), therefore, section 191 is not applicable." (Mehrab v. Emperor (F. B.) 26 Cr.LJ 181, Lai Bihari Singh v. Emperor 31 Cr.LJ 55). On the touchstone of criterion as discussed hereinabove we are of the considered view that the order passed by learned Ilaqa Magistrate dated 8‑11‑1997 is neither perverse nor capricious but on the other hand it has been passed after having an in‑depth scrutiny of the entire record and thus, it cannot be termed as non‑speaking as held by the learned High Court in the impugned judgment and being unexceptionable it hardly calls for any interference. We are inclined to convert this petition into appeal and accordingly while allowing the same the impugned order, dated 11‑5‑2001 is hereby. set aside being violative of the relevant provisions of law and consequently order, dated 8‑11‑1997 is restored. The learned trial Court is directed to proceed with the case in accordance with law. N.H.Q./S‑130/S Appeal allowed.