1. ' The above detailed two Criminal Misc. Applications arise out of one and the same order passed by learned VIIth Additional Sessions Judge, South Karachi, dated 28th January, 2003 in Criminal Revision No,51 of 2003 and Criminal Revision Application No,52 of 2003 A respectively, the first mentioned filed by applicant Farooq Faria and the other one by applicant Abdul Habib Memon, whereby the order, dated 13th September, 2003 passed by Vth Judicial Magistrate Karachi South in Criminal Case No, 62/2000 stands upheld.
2. ' Heard Mr. Rashid Yousuf Zai and Ms. Saify Ali Khan, Advocate for appellant Farooq Faria, and Mr. Muhammad Ali Abbasi, Advocate for appellant Abdul Habib Memon; also heard Mr. Shaikh Mir Muhammad, Advocate for complainant and Mr. Shaikh Javed Mir and Zulfiqar Haider Shah, Advocates for Respondents.
3. ' The facts giving rise to the filing of the present two Criminal Misc. Applications, as stated by the applicants, are to the effect that Secretary of Muslim Gym-Khana Rehmatullah (by name Complainant, Muhammad Siddique Balwani) lodged F.I.R. At Artillery Maidan Police Station on 23rd February, 1998 bearing F.I.R. No,88 of 1998 alleging therein that at about 9-00 p.m. On 15th January, 1998 about 30/40 culprits including Aziz Memon of UBL, Ibrahim Sodagar, Rehmatullah Pulani, Farooq Faria Memon, Sabir Ex.-Councillor, Office Secretary, Ashraf Abbasi son of Akbar Ali, Imran Jhanka, Amin Bohri, Aziz Sani, Habib Memon, Iqbal Lucky, Farooq 'Pard and others tresspassed into the premises of said Gym-Khana some of whom duly armed with fire arms and snatched the fire arms from the Guards of Gym-Khana, who were on their duty and started maltreating the Staff Members of Gym-Khana; they also snatched Keys of the Gym-Khana and took possession of premises thereof, and started damaging the property of Gym-Khana; hence at 12-00 mid night complainant Siddique Balwani went to premises of said Gym-Khana and found some culprits there; Counter Cash-Incharge informed him that the culprits had taken over all the files and other articles of the Gym-Khana by break opening the drawer of his (Complainant's) table and also took the cash amount from the same; they placed all the . Property in vehicles and took away the same therein; complainant checked the drawer of his table and found cash amount of Rs,11 lacs missing in Pakistani Currency, whereas 15,000 US Dollars were also found missing which were looted by the culprits; he had immediately informed the then Commissioner of Karachi Division and the Police Officials 'on Phone No,134 before proceedings towards the premises of GymKhana and then also sent a Telegram, dated 19th January, 1998 to the Authorities.
4. ' Police investigated into allegations made in the F.I.R. And a challan was submitted before the Court of Magistrate of competent jurisdiction wherein the above named applicants were shown in column No,2 of said challan with some others, whereas some co-accused were shown as accused (having been found to have committed the said offence as alleged).
5. ' Learned trial Magistrate proceeded with the case and framed the charge, dated 4th November, 2000, which reads as under:-- "CHARGE
(1) Syeda Parveen Shah, Judicial Magistrate XIth Karachi South Karachi Division do hereby charge against you.
(2) Abdul Aziz Memon son of Abdul Ghani,
(3) Ibrahim Sodagar son of Jaffar Sodagar,
(4) Farooque Biddo son of Abubakar, Ashraf Abbasi son of Ali Asghar, Rehmatullah son of Muhammad,
(5) Muhammad Amin Javeri son of Haji Ibrahim Javeri,
(6) Imran Jakha son of Amanullah Jakha.
6. As under:-- ' That on 15-1-1998 at 2100 hours you accused persons alongwith Farooq Faria son of Siddique Memon, Abdul Habib Memon son of Abdul Ghani, lqbal Lakhi son of Noor Muhammad, Aziz Nagar son of Usman Ghani (Shown in column No,2 in the charge sheet) and 30/40 persons entered in the Haji Abdul Haroon Muslim Gym Khana Awan-e-Saddar Road Karachi, some of you were carrying arms and snatched the weapons from guards and thereafter entered into the office of the complainant and given beating to the office staff and forcibly obtained keys from them, caused damages in the office, took away office record/file and other articles and by broken the lock of the table drawer took out rupees 11 (Eleven) Lac and 15000.00 US Dollars and went away, you assembled there unlawfully and thereby committed an offence punishable under sections 147, 148, 149, 427 and 451, P.P.C. Of Pakistan Penal Code, 1860 and within the cognizance of this Court.
7. ' And I hereby direct that you be tried by this Court on the above said charge.
8. ' (Sd.) 4-11-2000 (Syeda Parveen Shah) XIth, Judicial Magistrate Karachi South, Karachi Division."
9. ' It so appears that the trial Magistrate then recorded the evidence of the complainant and one witness in the said case whereafter learned counsel filed an application praying therein that the present applicants alongwith some other co-accused be joined as accused for having committed the alleged offence; the Magistrate vide order, dated 13th September, 2003 allowed the said application in the following terms:-- "By this order I have proposed to dispose of application for joining the culprits placed in column No,2 in the trial."
10. ' I have heard Mr. Jawaid Mir, Advocate for complainant. He contended that prosecution witnesses, examined by this Court, have implicated Iqbal Lucky, Farooq Faria and Abdul Habib Memon therefore process may be issued against them.
11. ' I have considered the arguments of learned counsel for complainant/Applicant and gone through the record.
12. ' I have to mention here that evidence of only two witnesses have been recorded and I am not going to deeply discuss the evidence of these two witnesses it may cause prejudice to either party, because case is at premature stage. However, from the perusal of evidence, available on record, witnesses so far examined, prima facie have deposed against Iqbal Lucky, Farooq Faria and Abdul Habib Memon therefore, bailable warrant be issued against Iqbal Lucky, Farooq Faria and Abdul Habib Memon. Who were kept in column 2 of challan."
13. ' The applicant filed the above stated two Criminal Revision Applications, respectively, against the said order of learned Magistrate, which were heard by learned VIIth Additional Sessions Judge Karachi South, who dismissed the same vide order, dated 28th January, 2001 and operative part thereof reads as under:-- "(5) Heard learned Advocates for the applicant and complainant as well as learned D.D.A. For the State and gone through the entire material available on record.
(6) Learned counsel for applicant has argued that appellant has no concern with the alleged crime. There is no evidence collected by the police connecting the applicant in this crime. Only two witnesses have been examined in the trial Court who too have contradicted their statement recorded under section 161, Cr.P.C. The order joining the applicant as accused is illegal and is liable to be set-aside by this Court in its revisional jurisdiction. He has relied on PLJ 1995 SC 160, PLD 1994 Supreme Court 281, 1986 PCr.LJ Karachi 440, 1984 SCMR 594 and 2001 SCMR 1556.
(7) On the other hand learned counsel for the complainant as well as learned DDA have argued that the order passed by the learned Judicial Magistrate is just and proper and does not suffer from any illegality or irregularity. The witnesses, examined by the police under section 161, Cr.P.C.
14. And two witnesses examined before the trial Court have implicated the applicant in this crime.
(8) I have carefully considered the arguments and perused the record. The learned Magistrate has passed the order after considering the material collected by the police and examining two witnesses, who have implicated the applicants in this crime. The witnesses in their statements recorded under section 161, Cr.P.C. And the witnesses who have been examined in the trial Court have fully involved the applicant in this crime. The learned Judicial Magistrate after recording the evidence served the notice upon the applicants to join him to the case as an accused. The advocate for the complainant has also moved application under section 493, Cr.P.C. Before the learned Judicial Magistrate, which is also on the record. The plea taken by the learned advocate for the applicant that the learned Magistrate before joining the applicant in the case has not served the notice upon the accused and the learned counsel for the complainant has not filed application under section 493, Cr.P.C. Is without force because the learned Judicial Magistrate have completed all the formalities and the said objection taken by the learned counsel for the applicant is over ruled. The burden lies upon the prosecution to prove the allegation against the applicant during trial.
(9) For the reasons discussed above, I see no illegality or irregularity in the order of the learned Judicial Magistrate. The revision application merits no consideration, the same is hereby dismissed."
15. ' Hence the applicants have filed the present Criminal Misc. Applications respectively with prayer that the said orders passed by learned two Courts below may be quashed/set aside.
16. ' I have carefully considered the arguments of learned counsel appearing for the parties; the pleas raised on behalf of applicants can safely be replied to by quoting the observations recorded by Honourable Supreme Court in case reported as Safdar Ali v. Zafar Iqbal and others (2002 SCMR 63) and relevant observations read as under:--
(6) A bare perusal of the said order would reveal that entire record has been examined including the statements of complainant, prosecution witness and F.I.R. 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 an exhaustive 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 in column No2. Of challan cannot be summoned by the learned trial Court to face the trial and there is no legal bar whatsoever that at first instance the evidence should be recorded to ascertain as to whether the prima facie case is made out against them. In this regard reference can be made to the case titled Waqarul Haq v. State (1988 SCMR 1428).
17. ' Malik Rab Nawaz Noon learned advocate Supreme Court could not maintained 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 applicants despite the fact that the Investigation Officer in his report under section 173, Cr.P.C. ' placed their names in column No,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 . Incharge of the Police Station shall---
(a) Forward to a Magistrate empowered to take cognizance of the offence on a police 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.
18. ' In conclusion, we may observe that this has been the consistent view of the High Court of 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)."
19. ' 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 material before him he found that a prima 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(1)(b) of the Code of Criminal Procedure. The view finds support from a decision of this Court in the case of Falak Sher v. State (PLD 1967 SC 425)." . (7) The implications of section 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."
20. ' 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 Sessions, 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 whenever 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 Sessions, 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 subsection (3) of section 190, Cr.P.C. a Magistrate who takes cognizance of any offence under any of the clauses of subsection (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 Sessions or whether it is one which he can proceed to try himself.'
21. ' Once the Magistrate has taken cognizance of the offence exclusively triable by the Court of Session, he has to send the case of that Court and it is not open for him to send the cases 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 Sessions. 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 petitioners, who had been placed in column No,2 learned counsel does not deny that the trial Court is possessed of such power. He contended that the trial Court has not taken proper note of the fact that the petitioners had been found guilty neither by the police nor by the Ilaqa 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. He had perused the record before him. His order summoning the petitioners thus, suffers from no legal infirmity. It is to be noted that the petitioners had dropped there objection to the issue of process against them by withdrawing their Criminal Miscellaneous No,992-M of 1982.
(8) It is well-entrenched legal principle that "when a Magistrate takes cognizance 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 v. Emperor (F.B.) 26 Cr.LJ 181, Lal Bihari Singh v. Emperor 31 Cr.LJ 55). On the touchstone of criterion as discussed hereinabove we are of the considered view that the order passed by learned Ilaqa 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 convert this petition into appeal and accordingly while allowing the same the impugned order, dated 11-5-2001 is hereby set aside being violative of the relevant provisions of law and consequently order, dated 8-11-1997 is restored. The learned trial Court is directed to process with the case in accordance with law."
22. ' The orders of learned two Courts below, impugned herein, have been reproduced above and in the light of the above quoted observations of Honourable Supreme Court, in my humble view said orders of the learned two Courts below do not suffer from any illegality.
23. ' Consequently, both these Criminal Misc. Applications do not appear carrying any merit therein and are hereby dismissed in limine together with the listed applications, respectively.