1971 P Cr (PLP)

"190.‑‑(I) Except as hereinafter provided, any District Magistrate or Sub‑Divisional Magistrate, and any other Magis trate specially empowered in this behalf, may 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 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. (2) The Provincial Government, or the District Magistrate subject to the general or special orders of the Provincial Government, may empower, any Magistrate to take cognizance under subsection (1), clause (a) or clause (b), of offences for which he may try or commit for trial. (3) The Provincial Government may empower any Magistrate of the First or Second Class to take cognizance under sub section (1), clause (c) of offences for which lie may try or commit for trial. 191.‑‑When a Magistrate takes cognizance of an offence under section (1), clause (c) of the preceding section, the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Court, and if the accused, or any of the accused, if there be more than one, objects to being tried by such Magistrate, the case shall, instead of being tried by such Magistrate, be committed to the Court of Session or transferred to another Magistrate." A perusal of the aforementioned provisions of law, shows that there was no legal impediment in the way of the Magistrate passing an order for the summoning of certain persons as accused even though the police had not challaned them, and to proceed with the case himself. While doing so, he obviously acts under, clause (b) of subsection (1) of. section 190 of the Code of Criminal Procedure. He was, therefore, not required to send the file to the District Magistrate for its transfer to any other Court under section 190 of the Code of Criminal Procedure because he did not take cognizance of the offence under subsection (1),I clause (c) of section 190 of the Code of Criminal Procedure.

8. This proposition of law has come under consideration a number of times. In the case of Mian Muhammad Akbar v. State(P L D 1967 Lah. 629) while dealing with the application of sections 190 and 191 of the Code of Criminal Procedure, Mr. Justice Bashiruddin Ahmad (now Chief Justice of Peshawar High Court), observed 'The preliminary enquiry is `Criminal Proceedings' being a 'step' in the trial of a person accused of an offence exclusively triable by the Court of Session but can, by no stretch of argu ment be held to be a trial. Chapter XX of the Code deals with the trial of summons cases by Magistrate while the trial of warrant cases by Magistrate is provided in Chapter XXI of the Code. In cases exclusively triable by tae High Court or Court of Session (as the case may be), the trial actually begins after commitment in accordance with section 213 of the Code." It was next observed :‑ "In a case relating to an offence exclusively triable by Court of Session, the application of section 191 of the Code is not attracted to the proceedings because it is provided in the section itself that in case the accused or any of the accused if there be more than one, objects to being tried by the Magistrate who has taken cognizance of an offence under clause (c) of sub section (1) of section 190 of `he Code, he can either transfer the case to another Magistrate or commit it to Court of Session for trial." It was further observed :‑‑ "A case triable by a Magistrate must be transferred to another Magistrate if the accused objects to being tried by a particular Magistrate who has taken cognizance of an offence under clause (c) of section 190 (1) of the Code, but if the offence is triable by Court of Sessions, the section itself provides that such Magistrate should commit the case to Court of Session because in cases exclusively triable by Court of Session the Magistrate takes cognizance of offence for the limited purpose of committing for trial and as an accused person in such a case is not to be tried by the Magistrate, the provision in section 191 of the Code that the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Magistrate, do not come into play. The principle' underlying section 191 of the Code cannot be extended and made applicable to a preliminary enquiry preparatory to commitment because such an interpretation would amount to doing violance to the language of the section." In the case of Muhammad Nawaz Khan v. Noor Muhammad arid others (P L D 1967 Lah. 176), my learned brother Sardar Muhammad Iqbal, J., observed :‑ "A Magistrate is not bound by the police officers' opinion expressed by him in his report under section 173 of the Criminal Procedure Code, 1898. On the contrary, the: Magistrate, by relying on the material furnished in the report, take cogniz ance of a case against the person whom the police officer believed to be innocent. Where cognizance is taken by a Magistrate of a case on the basis of a negative report under section 173 of the Code, such cognizance is taken obviously on the police report and not upon his own knowledge or suspicion. Clause (b) of subsection (I) of section 190 of the Code, does not say `upon a report in writing of fact against the accused'. All that it states is that upon a report in writing of such facts made by any police officer. The basis for taking cognizance under the said section is not the report against the accused but on a report of facts as made by the police officer. The case, would, therefore fall under clause (b) and not clause (c) of sub section (l) of section 190, Cr. P. C. Thus if a person is shown in column No. 2 of the challan and the investigating officer reports that there is no‑sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate for trial, it is competent for the Magistrate to direct that the bond given by the accused be discharged. It would mean that the Magistrate on perusal of the report is satisfied that the report of the police was correct and considered that it was in the interest of justice that no further proceedings should be taken against the accused. The Magistrate, however, is under no obligation to act in accordance with the opinion of the police officer and he can on the material which is furnished in the report take cognizance of a case against the person whom the investigating officer believed to be innocent: or that there was not sufficient evidence to justify his trial. If he takes such an action before he records any evidence, he will be deemed to be acting on the police report within the meaning of clause (b) of subsection (1) of section

190. He would, under the circumstan ces, not be taking cognizance under clause (c) of subsection (I) of section 190 and that being so the accused cannot object to his being tried by such Magistrate."

9. In the case of Falak Sher and another v. State (P L D 1967 SC425), it was held that the Magistrate was not bound by the report submitted by the police under section

173. He may or may not agree with the inclusion reached by the investigating officer. There was nothing in section 190 to prevent him from taking cognizance of the case under clause (b) in spite of the police report. Thus the action in issuing summonses to an accused despite the fact that the investigating officer in his report under section 173, Code of Criminal Procedure, had placed their names in column No. 2 thereof, was correct.

10. The case decided by Mr. Justice Sardar Muhammad tribal referred to above, was taken to the Supreme Court by Noor Muhammad and others and is reported as 1969 P Cr. L J

567. Their Lordships of the Supreme Court, after going into the facts of the case took note of the fact, that the case decided by Mr. Justice Sardar Muhammad Iqbal, had been approved by the Supreme Court itself in the case of Falak Sher v. State, referred to above and also in the Petition for Special Leave to Appeal No. 66 of 1966 (Sardar Ali and others v. State). In view of this, the appeal preferred by Noor Muhammad and others was dismissed.

11. The result, therefore, is that the learned Inquiry Magistrate was not justified in sending the case to the District Magistrate for its transfer to another Magistrate and this has also unnecessarily prolonged the inquiry proceedings.

12. Sheikh Akhtar Ali Monga; the Magistrate who is now seized of the case, appears to have made another attempt to throw of his responsibility, as he transferred the case himself to Qazi Fakhar Ullah. The latter refused to entertain it and hence the file was returned by him.

13. From what has been stated above, it is abundantly clear, that the directions issued by this Court for early disposal of the inquiry against the accused, have been ignored. It appears that the prosecution itself is interested in prolonging. the agony of the petitioners and that is why, even the police officers have not come forward to make their statements. Taking these factors into consideration, I would allow all the three applications. Ghulam Haider petitioner was granted interim bail by 'my learned brother Shamim Hussain Kadri, J. The same is confirmed. The remaining petitioners shall be released on bail, provided they execute bail bonds in the sum of Rs. 15,000 (Rupees fifteen thousand) each, with one surety each, in the like amount to the satisfaction of the Inquiry Magistrate.

14. This order, however, shall not stand in the way of the committing Magistrate or the learned Sessions Judge, in case the accused are committed to the Court of Session to cancel their bail. Petition accepted.