1969 PLP 271 (SCMR)

HAMOODUR RAHMAN, C. J.‑Leave was granted in this appeal to consider whether the High Court had rightly distinguished the decision of the Federal Court in the case of Abdus Sattar Molla v. The Crown (P L D 1953 F C 145). If not, then whether the trial with regard to the appellant Noor Muhammad was without jurisdiction also needed examination. What had happened in this case was that the Police had challaned several of the co‑accused on the 19th of February 1964. The appellant, Noor Muhammad, who was also an accused in that case and was ascribed the leading part, had not appeared before the Police but had obtained bail before arrest from the Sessions Judge on the I lth of March 1964. He appeared before the Magistrate on the 14th of March 1964, but the Police in their report under section 173 filed on the 20th of March 1964, showed him only in column No. 2 and at the sametime mentioned that if .the Magistrate so desired he may also be summoned. The Magistrate tried all of them, including the appellant, Noor uhammad, and convicted them under sections 148.and 307 read ith section 149 of the Pakistan Penal Code, and sentenced each of them to undergo rigorous imprisonment for a period of one year‑under the first charge and to three years under the second charge. On appeal, however, the learned Additional Sessions Judge, Sialkot, on the 12th of October 1965, set aside the conviction on the ground that in these circumstances the Magistrate should have informed the accused under section 191 of the Code of Criminal Procedure that he was entitled to have the case tried by another Magistrate. Since this was not done, the entire proceed ings had become vitiated. In revision, however, the High Court took the view that this was not a case which was covered by the decision of the Federal Court in Abdus Sattar Molla's case, for, here cognizance v as taken by the Magistrate on the basis of a negative report under section 173 submitted by the Police and, therefore, it was cognizance under sub‑clause (b) of clause (PLD 1967SC425) of section 190 and not sub‑clause (c) thereof. The order of the learned Additional Sessions Judge was, therefore, set aside and the case was remanded to. him for disposal on merits. Learned counsel for the appellants, however, now informs us that the decision of the ‑ High Court in this very case has been approved by this Court in the case of Falak Sher . v. The State (PLD 1967SC425) and also in Petition for Special Leave to Appeal No. 66 of 1966 (Sardar Ali and others v. The State). In the circumstances, it appears to us, on a perusal of the judgment of the High Court, that the case of Abdus Sattar Molla was rightly distinguished by the High Court for; there Abdus Sattar was at first discharged from his bail bond by the trial Magistrate who subsequently took fresh cognizance of the offence against him and directed the issuance of a warrant for his arrest. This could only have been done under clause (c) of subsection (PLD 1967SC425) of section 190 of the Code of Criminal Procedure. In these circumstances, this appeal must fail and, is accordingly dismissed. Appeal dismissed.