2000 M L D 1935
[Lahore]
Before Mian Nazir Akhtar and Nazir Ahmad Siddiqui, JJ
MUHAMMAD ASHIQ‑‑‑Petitioner
versus
SPECIAL JUDGE, SUPPRESSION OF TERRORIST ACTIVITIES, BAHAWALPUR and 6 others‑‑‑Respondents
Writ Petition No. 1106 of 1999/BWP, decided on 3rd November, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 173‑‑‑Penal Code (XLV of 1860), S.302/148/149‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Discharge of accused on police report by Trial Court after taking cognizance of the case ‑‑‑Validity‑‑ Trial Court had initially summoned all the accused and distributed the necessary copies of statements to them with a view to conduct the trial‑‑‑Case ‑had also been fixed for framing of the charge‑‑‑Court did not choose to await submission of the complete challan and it consciously proceeded to commence the trial on the basis of the interim report‑‑‑Trial Court, thus, had already taken cognizance of the offence and it was no longer open to it to entertain a fresh police report and discharge the accused‑‑‑Impugned order was consequently set aside with the direction to Trial Court to proceed with the trial of all the accused including the discharged accused in accordance with law.
Wazir v. The State PLD 1962 Lah. 405 and Muhammad Aslam and another v. Additional Secretary to Government of N.‑W.F.P. Home and Tribal Affairs Department and 4 others PLD 1987 SC 103 ref.
Sardar Ahmad Khan for Petitioner.
Muhammad Farrukh Mahmood and Muhammad Umair Mohsin for Respondents Nos.3 to 6.
M.A. Farazi for the State.
ORDER
Brief facts giving rise to this writ petition are that on a report lodged by Muhammad Ashiq, petitioner a case was registered against respondents 3 to 6 and others vide F.I.R. No.329 dated 24‑11‑1997 for offence under sections 302/148 and 149 of the P.P.C. at Police Station Musafirkhana, Bahawalpur.
2. During the course of investigation respondents Nos.3 to 6 were found to be innocent and their names were placed under column No.2 of the challan. The challan was submitted before the Special Judge (S.T.A.) on 22‑7‑1998. The copies of the statements of the witnesses recorded under section 161 of the Cr.P.C. and other documents were delivered to the accused on 27‑11‑1998. The Court fixed 17‑12‑1998 as a date for framing of charge. On that date, one of the accused Khan Muhammad was not present and was summoned from the jail for 4‑1‑1999. He was again absent and the case was adjourned for 13‑1‑1999. On the said date he appeared in the Court and as delivered the necessary copies of the statements etc. The case was adjourned for 3‑2‑1999 for framing of charge. On the request of the accused persons the case was adjourned for 23‑2‑1999. On the adjourned date an application was submitted by the S.‑I./S.H.O., Police Station Musafirkhana stating therein that, Muhammad Afzal, Hakim Ali, Ghulam Rasool and Allah Ditta/accused are innocent, therefore, they be discharged from the case. This application was allowed by the trial Court vide order dated 1‑3‑1999.
3. The petitioner's learn counsel urged that the police had examined 12 witnesses in defence of respondents Nos.3 to .6 and relief one, their evidence while forming an opinion regarding innocence of the said accused; that the trial Court readily agreed with the police opinion and wrongly discharged the accused although the challan had been submitted and cognizance of the offence taken by the Court; that the question of guilt or innocence of the accused can be properly decided by the trial Court after recording of evidence. On the other hand learned counsel for respondents Nos.3 to 6 submits that the trial Court had adverted to the contents of the F.I.R. and reproduced the same in the earlier part of the order; that in para.4 the Court had noted that it had carefully gone through the police report and the investigation conducted by the different police officers; that after thorough investigation it was established that the real culprits were Wazir Ahmad and Khan and that respondents Nos.3 to 6 were innocent and rightly discharged by the trial Court.
4. After hearing the learned counsel for the parties and perusing the material on the record we find that the trial Court had initially summoned all the accused, distributed the necessary copies of statements with a view to conducting trial. The Court had fixed two dates for framing of charge. These steps clearly show that the Court had taken cognizance of the offence and intended to proceed with the trial of the accused persons. By virtue of the proviso under section 173 of the Cr.P.C., where investigation is not completed within a period of 14 days the police has to submit an interim report attaining therein the result of the investigation made till then. It is further provided: The Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded the Court decides that the trial should not so commence". In the present case an interim report had been submitted and the Court summoned the accused/respondents with a clear ' intention to hold the trial. The interim orders do not show that the case was adjourned from time to time simply to await submission of the complete challan.
5. The petitioner's learned counsel has relied on the judgment in case of "Wazir v. The State" (PLD 1962 Lahore 405). The rule laid down in Wazir's case is of no help to the petitioner in the circumstances of the case. In the reported case it was laid down:‑‑
"In a case where a Magistrate cannot take cognizance of an offence without the sanction of the Government to prosecute and the sanction arrives a day after the police report is received by the Magistrate, it would be unreasonable to argue that the Magistrate had taken cognizance of the offence before the sanction had arrived. He may keep the case waiting until the sanction arrives and then pass some order to show that he intends to hold a trial. In the case of an incomplete challan, as in this case, although the Magistrate could start the trial, if he keeps it waiting until whatever is waiting (wanting) should be made up, he clearly does not taken (take) cognizance of the offence. If, therefore, the case is at that stage and a second report is received, showing that no offence is committed the Magistrate can accept the report and cancel the case."
Obviously, this is not the situation in the present case. The Court did not choose to await submission of the complete report and consciously proceeded to conduct trial on the basis of the interim report. The view expressed in Wazir's case was approved by the Hon'ble Supreme Court of Pakistan in the case of "Muhammad Aslam and another v. Additional Secretary to Government of N.‑W.F.P. Home and Tribal Affairs Department and 4 others (PLD 1987 SC 103).
6. After considering all the relevant facts and circumstances of the case we are of the considered view that the trial Court had already taken cognizance of the offence and it was no longer open to it to entertain a fresh police report and discharge respondents Nos.3 to 6.
7. For the foregoing discussion the petition is accepted and impugned order dated 1‑3‑1999, passed by the trial Court is set aside. The trial Court shall proceed with the trial of all the accused persons including respondents Nos.3 to 6 and conclude it in accordance with the law.
N.H.Q./M‑304/L
Petition allowed.
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