P L D 1964 Lahore 7 (PLP)

Sh. Shaukat Ali for Petitioner. M. Nazar Muhammad for Respondent. Dates of hearing : 7th and 21st October and 25th November 1963. A case under sections 379, 411, P. P. C. is pending in the Court of the City Magistrate, Lahore. The case was initially registered against Muhammad Yaqub and Mirza Muhammad Abbas, Advocate, petitioner. When the challan was presented, Muhammad Yaqub was produced as an accused, while the name of Mirza Muhammad Abbas, Advocate, was entered in Column No.

2. It was mentioned in the police report that although Mirza Muhammad Abbas had helped in the commission of the offence but the evidence against him was not strong enough to warrant his challan, so his name was being mentioned in column No.

2. The prosecution evidence as against Muhammad Yaqub was being recorded. On the 21st of January 1963, the P. S. I. requested the learned Magistrate to summon Mirza Muhammad Abbas. The learned Magistrate passed an order in these terms: P. S. I. requests that a case under sections 379/411, P. P. C. was made out against Mirza Muhammad Abbas whose name had been mentioned in column No. 2 and that he be summoned. The prayer of the P. S. I. is accepted. Mirza Abbas be sum moned for 1‑2‑1963. Mirza Abbas has filed this revision petition challenging the order passed by the learned Magistrate.

2. It is contended by the learned counsel for the petitioner that the order passed by the learned Magistrate was not based on his appreciation of the evidence recorded by the police during investigation or recorded by the Magistrate himself and that it had been passed mechanically on the basis of a request made by the P. S. I. it should therefore, be quashed. The learned counsel has relied on N. L. Carrick v. Emperor (A I R 1941 Pat. 395) in support of his contentions.

3. The question for consideration is whether in taking action the learned Magistrate acted merely on the request made by the P. S. I. or he passed orders of the summoning of the accused‑petitioner after weighing the evidence against him. In the latter case the order would be a proper judicial order and not liable to be interfered with by this Court. However, it is clear that the order was not passed after consideration of the evidence against the petitioner but as a mechanical order accepting the request of the P. S. I. The authority cited by the learned counsel fully supports the view and the learned counsel for the State is unable to contest this proposition. A further question to be considered is that when a Magistrate issues summonses to an accused whose name has been mentioned in column No. 2, whether he will be deemed to be acting under clause (b) or clause (c) of subsection (1) of section 190, Cr. P. C., if he is deemed to be acting under clause (c) it will be incumbent upon him to comply with the provisions of section 191, Cr. P. C. and to inform the accused that he was entitled to have the case tried by another Court, and if the accused or any of the accused if there be more than one object to being tried by such Magistrate he should either commit the case to the Court of Sessions or transfer it to another Magistrate. Abdul Sattar Maula v. The Crown (P L D 1953 F C 145) is a direct authority on this point, which lays down that in such a case the Magistrate would be deemed to be acting under clause (c) of sub‑clause (1) of section 190, Cr. P. C. The order passed by the learned Magistrate on the 21st January 1963 summoning the petitioner is, therefore, quashed, however, the learned Magistrate will be empowered to act in accordance with law, as indicated above. K. B. A. Petition accepted.