1989 P Cr (PLP)

Ali Ahmad Malik for Petitioners. Masood Sadaq Mirza for the State. Date of hearing: 12 November, 1988. This petition under section 561‑A, Cr.P.C. by Abdullah, Abdul Shakoor and Muhammad Arif, petitioners, has arisen in the following circumstances. In an incident which occurred at about 7 a.m. on 9‑1‑1985, Mst. Khurshid Begum, wife of Bashir Ahmad, complainant, was killed. The incident was reported to the police by Bashir Ahmad at 10‑40 a.m. on the same day. In the F.I.R., seven persons, namely, Abdullah, Abdul Shakoor, Muhammad Arif, petitioners, Mushtaq, Maqbool Tufail and Hassan Muhammad were named as culprits. As a result of police investigation, the petitioners were found innocent; later, the police obtained the order of the Magistrate discharging Abdullah, and Abdul Shakoor, petitioners. Muhammad Arif, petitioner's name was, however, placed in column No. 2 of the challan. The remaining accused persons, it appears, were challaned under section 304, read with section 34 of the P.P.C.

2. The learned trial Magistrate took cognizance of the offence and recorded the statement of Muhammad Arshad, one of the eye‑witnesses. He reiterated the facts as stated in the F.I.R., fully implicating the petitioners. For A reasons not apparent on the record, he was not cross‑examined. After recording his statement, the learned trial Magistrate directed the petitioners also to be summoned to stand their trial; in making that order; the learned trial Magistrate observed that he had perused the record; that against the petitioners, evidence had come on the record and that their names as culprits were mentioned in the F.I.R. and, therefore, there was sufficient material against them.

3. Against the order of the learned trial Magistrate, the petitioners went in revision but the learned Additional Sessions Judge dismissed the revision petition this stage evidence is not to be discussed and thrashed out in the manner as is discussed on merits of the case. It is just appraisal of the evidence showing that some incriminating material exists on the record and the Court has to take cognizance of it. Learned counsel for the petitioners maintains that as the police has found the petitioners innocent of the offence, the learned trial Magistrate was not competent to summon the petitioners unless a complaint wad filed against them. In support of his view, the learned counsel for the petitioner referred to a judgment of my learned brother Ghulam Mujaddid (as he then was) dated 1‑6‑1985. In that case, however, besides an order of the Magistrate discharging the petitioner, a private complaint had been filed and had been dismissed by the learned Additional Sessions Judge.

4. Under section 190 of the Cr.P.C., a Court takes cognizance of the offence and not of a particular accused person. It is now settled that an order of a Magistrate discharging the accused persons under section 173, Cr.P.C. is an administrative order and as was held m Bahadur v. The State P L D 1985 SC 62, when the Magistrate makes it there is no lis before him; there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order'. To put it differently, the making of the order under section 173(3), Cr.P.C. does not involve, and the order is not in the course of any lis inter parties; it cannot therefore, create res judicata.

5. I had the opportunity of considering this question in two cases, namely, Waqarul Haq v. The State P L D 1988 Lah. 336 and Riaz Ahmad etc. v. The State Criminal Revision No. 204 of 1988. In my view, the case is covered by the authority of Raja Khushbakhtur Rehman and another v. The State 1985 S C M R 1314; in that case not only had the police found the three accused persons innocent of the offence and had they been discharged by the Magistrate's order but also there was a finding by the Magistrate in the proceedings under section 202, Cr.P.C. that there was no credible evidence against them. It was held that `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. Dealing with the contention 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 Illaqa Magistrate to whom the case had been referred under section 202, Cr.P.C. it was observed that `the learned Judge in his order, dated 3‑10‑1987, 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. Thus according to the law laid down in Raja Khushbakhtur Rehman's case, the fact the name of the person does not find mention in the challan is little consequence as regards the jurisdiction of the trial Court to summon him, for cognizance can be taken even if the offender be unknown and on taking cognizance of the offence the Court acquires jurisdiction over all persons involved and not only over persons against whom the challan is submitted. I, therefore, agree with the learned Additional Sessions Judge that in summoning the petitioners, the learned trial Magistrate did not suffer from any legal infirmity.

6. There is, therefore, no merit in this petition. It is rejected. SA./A‑522/L Petition dismissed.