P L D 1956 (P (PLP)

The report of Mr. Muhammad Saeed‑ul‑Hassan, Magis trate, dated the 15th July 1955 is concise and only states that bloodstained earth was collected by the Police from the same place, which the accused party and their counsel had pointed out to the Magistrate. There are, however, some clarifications with regard to the path and other parts of the place of occurrence noted on the plan prepared by the Magistrate. The point needing the decision is as to whether a Magistrate can interfere under section 159 Cr. P. C. in the Police investigation, when the investigation has once started in a cognizable case; or the Magistrate can hold an independent inquiry side by side with the Police investigation. In view of Crown v. Muhammad Sadiq Niaz (P L D 1949 Lah. 562), the Magistrate cannot stop the investigation, but the point raised in this case is rather novel. In my opinion the Magistrate could not interfere in the investigation, which had already started in this cognizable case. The point involved has got some academic and guiding value, so I report the case for the order of the Hon'ble High Court under section 438 Cr. P. C., and recommend that the order of the learned Additional District Magistrate dated the 14th July 1955 be reversed. Dost Muhammad Khan, Advocate for A. G. for Petitioner. Jamil Husain Rizvi, Advocate for Respondents. ORDER OF THE HIGH COURT KAIKAUS J.‑While the police was investigating a case under section 307 P. P. C., the accused put in an application before the Ilaqa Magistrate (who happened to be the Addi tional District Magistrate) alleging that the place of occurrence was in the ihata of the accused where blood was still lying, that the investigating officer had, however, refused to record the report made by the accused, and that in the interests of justice it was essential that the place of occurrence be fixed by an inspection of the spot through some Magistrate. The learned Additional District Magistrate directed Mr. Muhammad Saeed‑ul‑Hasan, Magistrate, to inspect the spot and make a report. Mr. Muhammad Saeed‑ul‑Hasan proceeded to the spot and found that the allegation of the accused in the petition as to the place of occurrence being in their ihata was correct, but that there was ‑no dispute between the parties about it. The police had taken blood‑stained earth from the very place which was pointed out by the accused. Mr. Muhammad Saeed‑ul‑Hasan also prepared, on the request of counsel for the accused, a plan of the spot. The Public Prosecutor submitted an application to the Sessions Judge for a recommendation to the High Court, that the order of the Additional District Magistrate directing inspection of the spot be set aside as it was unwarranted in law. Reliance was placed on P L D 1949 Lah. 562 wherein is laid down, that a Magistrate cannot interfere with the police investigation. The learned Sessions judge has forwarded the case to the High Court with a recommendation that the order of the Additional District Magistrate be set aside. I am not inclined to agree that the order was unwarranted in law. It is convenient to quote here sections 157 and 159 of the Criminal P. C. "157. (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the Provincial Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender :‑ Provided as follows: (a) when any information as to the commission of any such offence is given against any :person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot ; (b) if it appears to be the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. (2) in each of the cases mentioned in clauses (a) and (b) of the proviso to ,subsection (1), the officer in charge of the police station shall state in his said report his reasons for not fully complying with the requirements of that subsection, and, in the case mentioned in clause (b), such officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the Provincial Government, the fact that he will not investigate the case or cause it to be investigated. 159: Such Magistrate, on receiving such report, may direct an investigation or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in manner provided in this Code." When a Magistrate receives a report under section 159 he can direct an investigation, or proceed to make an inquiry personally or through another Magistrate: The Additional District Magistrate is in this case the Ilaqa Magistrate and I will presume that he had received a report in this case, in accordance with section

157. Even if he had not in fact received the report, his authority to act would not be affected by the mere failure of the police officer to do his duty. Apparently, therefore, under section 159, the Additional District Magistrate had authority to depute a Magistrate subordinate to him to make an inquiry and a power to direct a full inquiry would include a power to make a partial inquiry as to the location of the place of occurrence. Then argument put forward on behalf of the Crown is that the learned Additional District Magistrate would have power to make or order an inquiry only if the police was not investigat ing the case. The simple answer to this argument is that the section does not say so. If the intention of the legislature was that the Magistrate had authority to hold an inquiry only when the police had refused to investigate and that an investigation by the police was a bar to any magisterial inquiry into the facts of the alleged cognizable offence, I do not see why such intention should not have been put in clear words. Nor do I find this contention consistent with the provisions of the Code relating to cognizance of cases by Magistrates. A Magistrate can take cognizance of a case, on a complaint, on a police report, on information received from a person other than a police officer, or upon his knowledge or suspicion, and once he takes cognizance he is entitled to make a full inquiry into the facts. There is no provision suspending his jurisdiction to take cognizance when the police begin investigation into a case. Although there are some observations in the referring order of Crown v. Muhammad Sadiq Niaz (P L D 1949 Lah. 562), which would support the contention of the learned counsel for the Crown. the judgment of the Division Bench rather goes against him and Khurshid Zaman, J. who made the referring order was also a member of the Division Bench. The facts in that case were that in a case which was being investigated by the C. I. D Special Staff the Additional District Magistrate, Rawalpindi, passed an order stopping police investigation and substituting therefore an enquiry by a Magistrate. The learned judges held that the learned Additional District Magistrate had no authority to stop investigation by the police and they set aside the order in so far as it prevented the Special Staff from proceeding with the investigation. It was contended before the learned judges that the Magistrate could "direct an investigation" only when the police was not investigating a case and that he could himself make an inquiry only when he could "direct an investigation", i.e., when police investigation was not going on. This contention was not accepted by the learned judges who said :‑ "It was stressed by the defence that there was nothing in the Code to prohibit the Magistrate from holding his own enquiry into a case investigated by the police. The learned counsel for the Grown maintained that the Magistrate had the option to hold his enquiry in those cases only where he had a right and the authority to `direct an investigation' by the police. The matter is not so easy and simple as the prosecution seems to think. It is problematical whether the alternatives to 'direct an investigation' contained in section 159, Criminal P. C., are no more than the different modes in which the direction to investigate might be exercised. Ordinarily where a person has the authority to order another to do a thing, he is not debarred from doing it himself and it is a moot point whether the Legislature was using words unnecessarily or intended to meet cases other than those in which 'investigation' could be directed to be made. These pertinent questions do not arise in this revision and I would express no opinion regarding them. Suffice it to say that even in an investigation by the police of a cognizable case the Magistrate is not a mere disinterested spectator and has over it some real and effective control, the nature and extent of which I am not called upon to determine." The observation that the Magistrate does exercise some control is definitely against the contention of learned counsel for the Crown. On general consideration too, it does not appear proper that if the police are conducting investigation in a manner deliberately unjust to the accused or the Magistrate, though he cannot stop the should also not be empowered to take steps to evidence which may be destroyed. I hold that the Additional District Magistrate was authorised to pass the order in question. I would point out that even if he had not the authority to do so, the evidence of Mr. Muhammad Saeed‑ul‑Hasan with respect to the of occurrence would not be rendered inadmissible on account of the order of the Additional District Magistrate being unwarranted in law. A. H. Reference rejected.