P L D 1965 (W (PLP)

RAYMOND, J.‑‑--This criminal revision application is directed against the order of the learned Additional Sessions Judge, Sukkur, (Mr. Ghulam Hussain S. Ansari) dated 3‑2‑1964, in which he set aside an order of Mr. B. R. Minwalla, A. D. M., Special Magistrate, Khairpur and Sukkur, dated 2‑1‑1964, dismissing under section 203, Criminal P. C., a private complaint filed by Opponent No. 2 Syed Amir Abbas against the present applicants and several others totalling 69 in all including four public officers, namely the District Magistrate and the Additional District Magistrate, Khairpur as well as the Superintendent and the Deputy Superintendent of Police, Khairpur. Against this order two criminal revision applications have been filed in this High Court the first being Criminal Revision Application No. 159/64, now under consideration, and the second being Criminal Revision Application No. 201/64 filed by the present respondent Syed Amir Abbas praying for further enquiry against the above‑mentioned four public officers. These two criminal revision applications were heard by us one after the other and thus we have had the advantage of the arguments of Mr. A. S. Pirzada, Barrister‑at‑Law appearing on behalf of the applicants in the present revision application and of Mr. Michael Havers Q. C. appearing on behalf of the Opponent No. 2 Syed Amir Abbas who is also the applicant in Criminal Revision Application No. 201/64. This order will dispose of Criminal Revision Application No. 159/64 and we are disposing of the Second Criminal Revision Application No. 201/64 by a separate order.

2. It would not be out of place to give here a brief resume of the facts out of which these two criminal revisions arise. It is by now commonly known that on the 3rd June 1963, which was Ashura day being the 10th day of the month of Moharram, an ugly riot occurred in the village of Thehri about 5 miles away from Khairpur between the two principal sects of Muslims namely Shias and Sunnis resulting in fairly widespread arson and the loss of many lives. As a result of the incidents of that day the police have challaned in Court some 8 or 9 cases against both Shias and Sunnis alike. On 24‑6‑63, the present Opponent No. 2 Syed Amir Abbas filed a direct complaint in the Court of the District Magistrate, Khairpur, against 69 accused including the present applicants, the four public officers referred to in the above paragraph and several others. This direct complaint was under sections 302, 307, 324, 325, 326, 459, 120‑B, 148 and 149 and section 295 read with sections 109, 116 and 166, P. P. C. After a somewhat chequered career this complaint finally reached the Court of Mr. B. R. Minwalla, A. D. M. and Special Magistrate, Khairpur and Sukkur, who was specially appointed for these cases arising out of the incidents that occurred at Thehri on 3‑6‑

63. This learned Special Magistrate recorded the statement of the complainant Syed Amir Abbas on oath on 20‑12‑63 and after hearing the arguments in the case he dismissed the complaint under section 203, Criminal P. C., on 2‑1‑

64. A criminal revision petition against this order of Mr. B. R. Minwalla was preferred in the Court of Sessions, Sukkur by the complainant Syed Amir Abbas and the learned Additional Sessions Judge who heard this petition by his order dated 3‑2‑64, upheld the order of the learned Special Magistrate so far as four public officers are concerned and with regard to the rest he directed that‑ "as the offences are grave involving sentence of death, the learned Magistrate should hold preliminary enquiry to find the truth or falsehood of the case. He should examine the material witnesses and for this purpose give a reasonable opportunity to the complainant to produce his witnesses. He should decide whether on the facts placed before him a case has or has not been made out for the issue of process."

3. Now, appearing on behalf of the applicants, their learned counsel Mr. A. S. Pirzada has urged that the order of the Additional Sessions Judge, Sukkur so far as the remaining 65 accused are concerned is an erroneous order for the reason that there cannot in law be parallel cases proceeding side by side against two different sets of accused arising out of the same offences or out of the same set of facts. Mr. Pirzada contended that this would amount to multiplicity of proceedings and he submitted that the learned Special Magistrate was perfectly right in his order in pointing out that: "taking cognizance of this private complaint would be multiplicity of proceedings". In support of this submission the learned counsel relied upon the case of Dedar Bux and another v. Syamapada Malakar (A I R 1914 Cal. 801). It was held in this case by a Bench of the Calcutta High Court that‑ "A Magistrate having taken cognizance of a complaint, can proceed against another person who, although not mentioned in the complaint, appears on the evidence for the prosecution to have been concerned in the commission of the offence. In issuing process against the person whose name thus transpires in the prosecution evidence during the trial of a case, Magistrate takes cognizance under clause (1) (a), section 190, Criminal P. C. and not under clause (1) (c) of the section." The learned counsel also relied upon a Full Bench decision of the former Court of the Judicial Commissioner in Sind in the case of Mehrab and another v. The Crown (17 S L R 150) where the Full Bench held that under section 190, Criminal P. C., a Magistrate takes cognizance of an offence and not of the offender and, therefore, where a Magistrate in a case of theft sent up by the police in which three persons were involved and yet only one challaned, issued a warrant against the remaining two, he was perfectly right in doing so. On the strength of these authorities Mr. Pirzada finally submitted that it was open to the Magistrate when hearing the cases challaned by the police against the 35 or 36 accused placed in the dock, to add the names of any further accused that may appear from the deposition of the prosecution witnesses to be involved in the offences under enquiry.

4. It was submitted by Mr. Haleem, the learned Assistant Advocate‑General appearing on behalf of the State that. the applicants in this criminal revision application have no locus standi and, therefore, the present revision petition is incompetent. He pointed out that the applicants have neither appeared as accused in the Court of the Special Magistrate nor as opponents in the Court of the Additional Sessions Judge and, therefore, they should have no right to be heard in this High Court. Mr. Haleem further submitted that the three clauses (a), (b) and (c) of section 190, Criminal P. C., are not mutually exclusive quoting the case of State v. Mohan (I L R 1959 Rajkot 671) in support of this contention. He argued that there was nothing wrong in law in the Magistrate proceeding with the police case as a committal Court and side by side holding a preliminary enquiry at the instance of the complainant in order to satisfy himself whether some further accused were or were not involved in the commission of the same offences. He cited before us a ruling of the Calcutta High Court in the case of Hari Satya Bishnu v. Emperor (I L R 50 Cal. 482) in which it was held that:‑ "A Magistrate is not dabarred by any provision in the Criminal Procedure Code from taking cognizance of an offence only because another Magistrate has already taken cognizance of the same and is in seisin of the case, and a multiplicity of trials can be avoided by transfer of the cases to one of them."

5. We have also heard Mr. Havers, Q. C., appearing on behalf of the Opponent No. 2 Syed Amir Abbas. He explained that so far no committal order had been made in the cases challaned by the police nor was any date fixed for such order. The preliminary enquiry directed by the Additional Sessions Judge said, Mr. Havers, could be held by the Magistrate concerned with the utmost expedition so that it could finally be determined whether the forty‑four additional persons who, according to the complainant/opponent No. 2 Syed Amir Abbas, are also involved in the same offences, should be committed along with the accused cited in the police challan.

6. We have bestowed our careful attention upon the arguments advanced before us at the Bar in this matter. We were particularly concerned with the legal contention of Mr. A. S. Pirzada that the police having challaned all the cases arising out of the incidents of that day it is now not open to the Magistrate to take cognizance of any private complaint on the same set of facts because this would amount to a multiplicity of proceedings. In the first place, we cannot bring ourselves to believe that a complainant whose near and dear ones have been murdered and who is dissatisfied with the police challans honestly feeling that all the murderers have not been placed before the Court for trial, is precluded from inviting the attention of the Court concerned to these remaining persons who have not been challaned and that the Court itself is prevented from conducting a preliminary enquiry into the truth or otherwise of the allegation of this complainant that more accused than those present in Court are involved in these offences. At the hearing of the cases challaned by the police before the Magistrate the conduct of the prosecution is in the hands of the Special Public Prosecutor and this officer will naturally be anxious to follow his brief and to see that his prosecution witnesses keep as near as possible to the statements made by them to the police under section 161, Criminal P. C. Thus, the likelihood of a prosecution witness who wishes to implicate further accused not before the Court being assisted or helped in this regard by the State counsel is very remote indeed. Besides, the committing or trial Magistrate would not be anxious to encumber his record by taking down the names of accused who then are not before him in Court. In the fact of these admitted difficulties the chances of a complainant who is anxious to see that full justice is done and that all the evil‑doers are brought to book being able to obtain redress from the police case while in progress are flimsy indeed, and, therefore, it seems to us, it would be unjust to shut out such a complainant from bringing his own private complaint in which he mentions all the persons who, according to him, are responsible for the alleged offences.

7. Nor do we think that such a preliminary enquiry by committing Magistrate into a private complaint brought by the complainant would necessarily involve multiplicity of trials and proceedings. If the preliminary enquiry should disclose that no further accused persons are involved m the offences under enquiry, then, the proceedings in the cases challaned by the police remain as they are while at the same time the complainant will have the satisfaction of knowing that his allegations have fully been enquired into. If, on the other hand, the preliminary enquiry should B disclose that additional accused persons are involved a separate committal order could be written concerning them and they would be tried at one trial in the Court of Sessions along with the accused who have been committed in the cases challaned by the Police. Indeed, instances are not in frequent where in the case of an offence exclusively triable by a Court of Sessions some of the accused secured later have been committed later by subsequent committal proceedings though the Sessions trial of all the accused has been one.

8. We are not impressed by the contention of Mr. Haleem, the learned Assistant Advocate‑General, that the applicants in this case have no locus standi and that the present revision petition is incompetent. It was pointed out by Mr. Pirzada in this connection that his clients the petitioners are aggrieved persons C because they have received summonses from the Court of the learned Special Magistrate to appear before him in the preliminary enquiry directed by the learned Additional Sessions Judge, Sukkur. Besides under sections 435, 436 and 439, Criminal P. C., it is open to any person to move the Court on its revisional side and the High Court can, on its own motion, in the case of any proceeding the record of which has been called by itself or which has been put up for orders or which otherwise comes to its knowledge, proceed to enquire into the matter in order to satisfy itself as to the regularity of any such proceeding. Therefore, even if the petitioners had no locus standi, this Court is still competent to examine the matters in exercise of its revisional powers.

9. We have, therefore, reached the conclusion that there is nothing illegal or wrong in the impugned order of the learned Additional Sessions Judge, Sukkur directing the learned Special Magistrate to hold a preliminary enquiry to find the truth or false?hood of the complaint of the opponent No.

2. No process need issue to these applicants and during the preliminary enquiry to be conducted by the learned Special Magistrate it would not even be necessary for them to appear in his Court. As a result of such an enquiry he should satisfy himself whether there is any force in the allegation of the complainant/opponent No. 2 that more persons than those present in Court are involved in the alleged offences. For these reasons,, then, we dismiss this criminal revision application. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.