PLJ 2002 SC 304
Criminal Procedure Code, 1860 (XLV of 1860)--
—Ss. 169, 173 & 190-Constiuttion of Pakistan (1973), Art. 185-Trial Magistrate's order not to discharge accused persons on police report set aside by High Court directing it to decide the case through speaking order-Validity—Trial Magistrate's order showed that entire record had been examined including statements of complainant, prosecution witnesses and F.I.R. and thus, impugned order could not be deemed to have been passed in mechanical manner or arbitrarily-Magistrate was not supposed to pass exhaustive order for the reason that he was not deciding the case, therefore, it was not obligatory for him to dilate upon each and every aspect of the matter which fall within his jurisdictional negative report submitted by Police that accusation was baseless and no case was made out against delinquents-Where Magistrate disagrees with Police report he can take action under clause (b) of S. 190 Cr.P.C. against those whose names have been placed under column 2 of challan and he can issue process against those persons whose names were mentioned in said column who appear to him on the basis of report or
other material placed before him, when he has taken cognizance of case, to be concerned in the commission of the offence-Order passed by trial" Magistrate was, thus, neither perverse nor capricious but the same had been passed after having an indepth scrutiny of entire record, therefore, same cannot be termed as non-speaking order as deemed by the High Court in impugned judgment-Petition for leave to appeal was converted into appeal and impugned order of High Court was set aside while that of trial Magistrate was restored. [Pp. 306 to 311] A, B & C
1997 SCMR 304; 1988 SCMR 1428; PLD 1967 SC 425; PLD 1967 Lah. 176;
1972 SCMR 335; 1986 SCMR 1736; 1985 SCMR 1314; 1981 SCMR 267;
26 Cr.L.J. 181 and 31 Cr.L.J. 55.
alik Rab Nawaz Noon, ASC and Ejaz Muhammad Khan, AOR for Respondents Nos. 1 and 2.
Date of hearing: 18.6.2001.
PLJ 2002 SC 304
[Appellate Jurisdiction]
Present: SH. RlAZ AHMAD, QAZI MUHAMMAD FAROOQ AND JAVED IQBAL, JJ.
SAFDAR ALI~Petitioner
versus
ZAFAR IQBAL and others-Respondents Crl. Petition for Leave to Appeal No. 117 of 2001, decided on 18.6.2001.
(On appeal from the order dated 11.5.2001 of the Lahore High Court
Rawalpindi Bench Rawalpindi passed in Cr. Misc. No. 622-M/2001
in Crl. Rev. No. 137 of 2000)
ORDER
Javed Iqbal, J.--This criminal petition for leave to appeal has been preferred on behalf of Safdar Ali (petitioner) under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 against the orders dated 25.4.2001 and 11.5.2001 passed by learned Lahore High Court Rawalpindi Bench Rawalpindi in Criminal Revision No. 137 of 2000 whereby order dated 8.11.1997 passed by learned Illaqa Magistrate has been set aside and case remanded back with the direction for its disposal after affording an opportunity of hearing to both the parties on questions of law and facts.
2. Briefly stated the facts of the case are that in pursuant to FIR got lodged by Safdar Ali on 6.10.1997 under Sections 302, 324, 147, 148 and 149 PPC a case was registered at Police Station Saddar Berooni and in consequence whereof the respondents were arrested. After completion of iirvestigation an application was moved for discharge of the respondents which was turned down by the learned Illaqa Magistrate vide order dated 8.11.1997. Being dissatisfied the respondents filed a criminal revision before the learned Additional Sessions Judge which was dismissed by means of order dated 25.9.1999. The respondents made another attempt for the redressal of their grievances and filed a writ petition which was dismissed on 24.11.1999. The respondents thereafter preferred air application under Section 265-K Cr.P.C which was dismissed by the learned Additional Sessions Judge on 14.9.1999 which was assailed before the learned Lahore High Court Rawalpindi Bench Rawalpindi and case was remanded to the learned trial Court for its disposal. It mainly prevailed upon the learned High Court that the order passed by learned Illaqa Magistrate on 8.11.1997 hereby discharge application submitted by police was rejected cannot be termed as a speaking order.
3. It is mainly contended by Mr. Muhammad Eyas Siddiqui learned ASC on behalf of petitioner that the provisions as contained in Sections 169 and 173 Cr.P.C. have been misconstrued and misinterpreted which resulted in serious miscarriage of justice. It is next contended that challan has been submitted and after lapse of a few years a remand of case by the learned High Court is not in accordance with settled norms c,f justice as the application submitted under Section 265-K Cr.P.C. by the respondents was rejected vide order dated 14.9.2000 which was' passed after having scrutinized the entire record with care and cautjon by the learned Additional Sessions Judge, Rawalpindi. It is also contended that the discharge order was passed by learned Illaqa Magistral- on 8.11.1997 which was assailed before the learned Additional Sessions Judge by means of revision which was also dismissed on 25.9.1999. It is urged with vehemence that every effortwas made by the respondents to protract the case by one or the other pretext which aspect of the matter escaped notice from the learned High Court.
4. Malik Rabnawaz Noon, learned ASC appeared for caveators and has supported the impugned judgment being free from any illegality or infirmity by arguing that the order passed by Illaqa Magistrate dated 8.11.1997 was laconic as proper opportunity of hearing was not provided to the respondents and discharge order has been passed in a cursory and slipshod manner which resulted in serious miscarriage of justice. It is also contended that the names of the respondents were shown in Column No. 2 of the challan and thus they could not have been summoned to face the trial without recording the evidence establishing that a prima facie case is made out against them. In order to substantiate his version case titled Muhammad Sharif v. State (1997 SCMR 304) has been referred.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have also examined the order of learned Illaqa
Magistrate passed on 8.11.1997 which is reproduced herein below for ready reference:-
6. A bare perusal of the said order would reveal that entire record has been examined including the statements of complainant, prosecution witnesses and FIR and thus it can be inferred safely that the same has not been passed in a mechanical manner or arbitrarily. It may not be out of place to mention here that learned Illaqa Magistrate was not supposed to pass anexhaustive order for the simple reason that he was not deciding the case at all and, therefore, it was not obligatory for him to dilate upon each and every aspect of the matter which falls within the jurisdictional domain of learned trial Court. It is well settled by now that the Magistrate can take cognizance of an offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents. There is no cavil to the proposition that the accused placed on Column No. 2 of challan cannot be summoned by the learned trial Court to face the trial and there is not legal bar whatsoever that at first instance the evidence should be recorded to ascertain as to weather the prima facie case is made out against them. In this regard reference can be made to case titled. Waqarul Haq v. State (1988 SCMR 1428). Malik Rabnawaz Noon learned ASC could not mention any provision in Cr.P.C. in support of his contention that evidence should have been recorded prior to summoning the respondents whose names were admittedly placed in Column No. 2 of the challan. In this regard we are fortified by the dictum as laid down in case titled Falak Sher v. State (PLD 1967 SC 425) which has been followed in various judgments passed by this Court and relevant portion whereof is reproduced herein below for ready reference:-
"In our opinion, the action of the Magistrate in issuing summons to these appellants despite the fact that the Investigating Officer in his report under Section 173, Cr.P.C. placed their names in Column 2, was clearly correct. Section 173, Cr.P.C. is in these terms:-
"173.—(1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police-station shall--
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by
him to the person, if any, by whom the information relating to the commission of the offence was first
given.
(2) Where a superior officer of police has been appointed under Section 158, the report shall, in any cases in which the Provincial Government by general or special order so irects, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police-station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) ........................ "
Under sub-section (1), when the investigation is completed the police officer is required to forward to the Magistrate a report in the prescribed form. Under sub-section (3) when it appears from the report forwarded under Section 1, that the accused has been released on his bond "the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit". It is clear that under Section 3 a Magistrate may agree or may not agree with the police report. It, however, does not say what step the Magistrate should take if he disagrees with the police report. If the Magistrate wants to start a proceeding against the accused, he must act under Section 190 of the Code of Criminal Procedure.
Section 190 provides that a Magistrate "may take cognizance of any offence (a) upon a complaint, (b) upon a police report, or (c) upon information received by himself.
Now, the question is, if he disagrees with the report, can he take action under clause (b) against those whose names have been placed under Column 2 of the challan. As already pointed out, the Magistrate is not bound by the report submitted by the police under Section 173. When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the Investigation Officer. There is nothing in Section 190 to prevent a Magistrate from taking cognizance of the case under clause (b) in spite of the police report. This Court in the case of Sardar Ali and others v. The State P.S.L.A. No. 66 of 1966, while dealing with a similar question, observed:-
"Reference to Section 173, Cr.P.C. which prescribes the details that must go into a police report of the relevant kind shows that the requirements are of a factual nature, so that, irrespective of the Investigating Officer's opinion, a Magistrate takes cognizance on a police report, when he proceeds against a person whose name is mentioned therein as one accused of the offence reported upon."
In conclusion, we may observe that this has been the consistent view of the High Court West Pakistan and that Court has correctly interpreted the meaning and scope of
Sections 173 and 190 of the Code of Criminal Procedure in Muhammad Nawaz Khan v. Noor Muhammad and others (PLD 1967 Lah. 176)".
A similar proposition was discussed in case titled Muhammad Akbar v. State (1972 SCMR 335) as under:
"Even on the first report alleged to have been submitted under Section 173, Cr.P.C. the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cognizance, if upon the materials before him he found that aprima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of Section 190(l)(b) of the Code of Criminal Procedure. This view finds support from a decision of this Court in the case GtFalak Sher v. State (PLD 1967 SC 425)".
7. The implications of Sections 173 Cr.P.C. were also discussed in case titled Saeed Muhammad Shah v. State (1993 SCMR 550) wherein it was held as under:
"Report of police officer under Section 173, Cr.P.C. is merely an information of the police officer and the same is not admissible in evidence. Presumption of innocence of accused involved in such report is not diminished by mere fact that the case has been sent up for trial or that particular witness or person had formed opinion against the accused."
The said view also finds support from case titled Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736). An identical issue remained subject of discussion in case titled Khushbakhtur Rehman v. State (1985 SCMR 1314) whereby it was concluded as follows:
"6. Before us, too learned counsel for the petitioner reiterated the contentions that application of mind being a prerequisite of taking cognizance, the Magistrate, who had acted mechanically and without application of mind in sending the case to the Court of Session, could not be said to have legally taken cognizance of the case. In this connection, he urged that the case against the petitioners, who had been found innocent by the police could not have been sent alongwith that of the other accused without express reasons. The arguments addressed by learned counsel in fact showed that he laboured under the impression that cognizance is to be taken of an offender, but that is not the law. 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. The word "cognizance" is a term of art implying application of mind to the facts of a case in order to determine whether the facts disclosed constituted an offence triable. Application of mind for the purpose of cognizance under Section 190 (1) and (3) read with Section 193, Cr.P.C. is for the purpose of determining whether the facts disclosed the commission of an offence triable exclusively by the Court of Session, in which case the Magistrate is bound to send the case to the Court of Sessions for trial. This legal position stands already explained by this Court in Mehar Khan v. Yaqub Khan 1981 SCMR 267 in the words:
"....even under the recently substituted sub-section (3) of Section 190, Cr.P.C., a Magistrate who takes cognizance of any offence under any of the clauses of sub-section (1) of that section, is required to apply his mind in order to ascertain as to whether the case in question is one which he is required to 'send' for trial to the Court of Session or whether it is one which he can proceed to try himself."
Once the Magistrate has taken cognizance of the offence exclusively triable by the Court of Sessions, he has to send the case of that Court and it is not open for him to send the case only qua those of the accused who are placed in Column No. 3 of the challan. The order of the Magistrate shows that the challan had been before him when he ordered the sending of the case to the Court of Session. The contention that he had not applied his mind to the facts of the case is thus devoid of merit.
7. As regards the power of the trial Court to summon the etitioners, who had been placed in Column No. 2 learned counsel does not deny that the trial Court is possessed of such power. He contends 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. The learned Judge in his order, dated 3.10.1978 has given reasons for summoning the petitioners. thus suffers from no legal infirmity. It is to be noted that the petitioners had dropped their objection to the issue of process against them by withdrawing under Section 190 (1) (b) on a police report he takes cognizance of
the offence and not merely of a particular person charged in the report as an offender. He can, therefore, issue process against other persons who also appear to him on the basis of the report and other material placed before him when he has taken cognizance of the case, to be concerned in the commission of the offence when he does so he does not act under clause (c),therefore Section 191 is not applicable." (Mehrab vs Emperor [F.B.] 26 Cr.L.J. 181, Lai Bihari Singh v. Emperor 31 Cr. L.J. 55. On the touchstone of criterion as discussed herein above we are of the considered view that the order passed by learned Rlaqa Magistrate dated 8.11.1997 is neither perverse nor capricious but on the other hand it has been passed after having an in depth scrutiny of the entire record and thus it cannot be termed as non-speaking as held by the learned High Court in the impugned judgment and being unexceptionable it hardly calls for any interference. We are inclined to J convert this petition into appeal and accordingly while allowing the same the impugned order dated 11.5.2001 is hereby set aside being in violative of the relevant provisions of law and consequently order dated 8.11.1997 is restored. The learned trial Court is directed to proceed with the case in accordance with law.
(A.A.) Appeal accepted.
0 Comments