1. ' Through this Crl. Misc. Appin. Filed under section 561-A, Cr.P.C. By applicant Jeo son of Jan Muhammad Khoso has impugned order dated 10-9-2003 passed by the learned Civil Judge and F.C.M., Mehar under section 190 read with section 173, Cr.P.C.
2. ' The facts in brief are that at the instance of respondent No,1 Ali Nawaz a complaint dated 11-8- 2003 was lodged at Police Station Mehar under sections 302, 504 and 34, P.P.C. The Investigation Agency submitted final report under section 173, Cr.P.C. Wherein Khadim Hussain Khoso was shown under custody while accused Sajan Bhand was shown as absconder and both were challaned while the applicant was released under section 497, Cr.P.C. And his name was placed in Column 2 of the challan. The learned Civil Judge and F.C.M., Mehar issued show-cause notice to the applicant as to why he should not be joined to face trial. The applicant appeared and submitted his reply.
3. Thereafter the learned Civil Judge and F.C.M. Heard the complainant and the applicant and passed impugned order whereby he took cognizance of the offence against all the accused including the applicant and took the applicant in custody and remanded him to the District Jail, Dadu and thereafter sent the papers to the Court of Sessions Judge, Dadu. Against the impugned order the applicant filed a Constitutional Petition No,D-268 of 2003 and by order dated 30-1-2004 the said Constitutional petition was dismissed as having become infructuous and office was directed to assign number of criminal miscellaneous application to the case. Amended title was filed.
4. ' It is contended by Mr. Asif Ali Abdul Razak Soomro, the learned counsel for the applicant that Civil Judge and F.C.M. Could not have taken cognizance of the case and was not competent to pass order of taking the applicant in custody and remanding him to District Jail, Dadu. He has submitted that as the case under section 302, P.P.C. Is exclusively triable by the Sessions Court, the Civil Judge and F.C.M. At best could have bound down the applicant and taken surety for his appearance before the Sessions Court. In this respect he has referred to the provision of section 190(2), Cr.P.C.
5. And emphasized on the words "without recording any evidence" appearing in such provision. In support of his submissions he has relied upon an unreported order, dated 11-12-2002 passed in Crl.
6. Petition No,105-K of 2002 by the Honourable Supreme Court of Pakistan. He has also relied upon the following case-law:--
(1) Inayatullah and 4 others v. The State and another 1999 PCr.LJ. 731,
(2) Shahbaz Ali and another v The State and another 2002 YLR 3595,
(3) Arif Ali Khan and another v. The State and 6 others 1993 SCM R 187,
(4) Hussain Ahmad v. Mst. Irshad Bibi and others 1997 SCM R 1503,
(5) Akhtar All Khan v. The State and others 2004 Cr.LJ 247,
(6) The State v. Nathe Khan and 5 others 1969 PCr.LJ 378,
(7) Farooq Sumar and others v. The State and others 2004 PCr.LJ 1023,
(8) Khalid Iqbal v. The State 1991 PCr.LJ 443,
(9) Muhammad Haneef and another v. The State 1979 PCr.LJ 1078,
(10) Raja Khushbatkhtur Rehman and another v. The State 1985 SCM R 1314,
(11) Sajid Jalal and 2 others v. The State and another 1972 SCM R 516.
7. ' On the other hand Mr. Altaf Hussain Surahiyo the learned counsel appearing for respondent No,1 has supported the impugned order and has stated that the Civil Judge and F.C.M. Was not bound by the challan submitted by the Investigation Agency and that he has competently taken cognizance of the offence and rightly taken the applicant in custody and remanded him to District Jail, Dadu. He has stated that in undertaking this exercise the Civil Judge and F.C.M. Has not recorded any evidence but has only perused the papers submitted by the Investigation Agency. In support of his submissions he has cited the cases of Falak Sher and another v. The State PLD 1967 SC 425, Federation of Pakistan v. Malik Mumtaz Hussain and 4 others 1997 SCM R 299 and Safdar Ali v. Zafar Iqbal and others 2002 SCM R 63.
8. ' Mr. Mushtaque Ahmed Kourejo the learned State counsel has supported the impugned order and cited the case of 2002 SCM R 63. In rebuttal counsel for the applicant argued that while dealing with the case, the Civil Judge and F.C.M. Has taken into consideration the contentions of the complainant and that the order does not show that the bond of the applicant has been cancelled and that the action of Civil Judge and F.C.M. Amounts to holding of enquiry which was illegal and in support of his contentions, has cited the case of 2000 PCr.LJ 520.
9. ' I have considered the arguments of the learned counsel and have gone through the record. It may be noted that under the provision -of section 173, Cr.P.C. The Investigation Agency is required to forward to 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 appeared 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 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 offence was first given. Subsection (1) of section 190, Cr.P.C. Provides that all Magistrates of the First Class or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court may take cognizance of any offence upon receiving a complaint of facts which constitutes such offence, upon a report in writing of such facts made by any Police Officer, (c) upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that such offence has been committed which he may try or send to the Court of Sessions for trial. Subsection (2) of this section provides as follows:-- "(2) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Sessions shall, without recording any evidence, send the case to Court of Sessions for trial."
10. ' On perusal of the provision of section 190, Cr.P.C. It seems very clear that the Magistrate is empowered to take cognizance of any offence upon receiving of complaint of facts which constitutes offence, upon a report in writing of such facts made by the Police Officer or upon information received from any person other than a Police Office or upon his own knowledge or suspicion. Provision further provides that on taking of cognizance of offence triable exclusively by Sessions Judge, the Magistrate without recording any evidence send the case to the Court of Sessions for trial. The question that needs consideration however, is whether the Magistrate could have taken the applicant in custody and remanded him to the District Jail, Dadu who otherwise was let off by the Investigation Agency under section 497, Cr.P.C. And placed his name in Column 2 of the challan. To examine this question, case-law on the subject needs to be considered. In the case of Falak Sher (supra) the Honourable Supreme Court of Pakistan at page 427 observed as follows:--- ' 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 directs, 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) ..
11. ' Under subsection (1), when the investigation is completed the Police Officer is required to forward to the Magistrate a report in the prescribed form. Under subsection (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.
12. ' 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".
13. ' Now, the question is, if he disagrees with 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 Investigating 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".
14. "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 (1). ...."
15. ' In the case of Mehar Khan v. Yakub Khan 1981 SCM R 267, the Honourable Court while dealing with the question of interpretation of sections 190 and 344(1) of Cr.P.C. At page 274 has observed as follows:-- "the cause for this apparent conflict or confusion is, however, not difficult to spot. It has resulted simply from the fact that it has been generally overlooked that, as explained in paragraph No,9, above, 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 Session or whether it is one which he can proceed to try himself. In other words, under the law, as it stands at present, this application of mind by the Magistrates now constitutes the 'inquiry' which he is empowered to postpone or adjourn under section 344(1), Cr.P.C.
16. ' It follows, therefore, that a Magistrate who has taken cognizance of a case under section 190(1), Cr.P.C. And is applying his mind for the before mentioned purpose, is also empowered under the said section, to postpone the commencement of or adjourn the said 'inquiry' and naturally therefore, he would have the power to remand the accused to judicial custody from time to time, till he finally 'sends' the case for trial to the Court of Session."
17. ' In the case of Federation of Pakistan (supra), the Honourable Supreme Court at page 302 has observed as follows:- "It is well-settled law that a report submitted by the Investigating Officer under section 173, Cr.P.C. Is not binding on the Court. The Court, therefore, notwithstanding the recommendation of the I.O.
18. Regarding cancellation of case and discharge of the accused from the case, may decline to cancel the case and proceed to take cognizance as provided in section 190, Cr.P.C. And summon the accused person to face the trial."
19. ' In the case of Safdar Ali (supra), the Honourable Supreme Court of Pakistan after examining the case-law on the subject at page 71 has observed as follows:-- "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.)
20. 26 Cr.LJ 181 and Lal Bihari Singh v. Emperor 31 Cr.LJ 55.
21. ' 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 indepth scrutiny of the entire record and thus, it cannot be termed as hon-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 according while allowing the same then 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 proceed with the-case in accordance with law."
22. ' The judicial consensus, therefore, is that the Magistrate is not bound by the report of the Investigation Agency. He is required by law to apply his mind to the material placed before him and form his own opinion about the matter. In the process of applying his mind, he is required to conduct enquiry and while conducting enquiry can remand the accused to custody. He is entitled to summon a person placed in Column No,2 of the Challan and array him as accused. Now in a case where the Magistrate has arrayed the person named in Column No,2 of the Challan as accused, can it be said that the Magistrate will remain bound by the action of the Investigation Agency of letting of such persons under section 497, Cr.P.C. In my view, the Magistrate is not bound by such action of the Investigation Agency. The Magistrate on coming to the opinion that the let of.
23. Person who has been arrayed as accused will further decide keeping in view the nature of offence as to whether such accused is to be let of on bond and surety or has to be taken in custody, as I see no limitation in the powers of the Magistrate in this regard under section 190, Cr.P.C. In doing this exercise the Magistrate in case triable by Session Court neither records any evidence nor does he do anything which Sessions Court is only competent to do.
24. ' In the present case the learned Civil Judge and F.C.M., Mehar has applied his mind to the facts and circumstances of the case and has passed order giving reasons for taking the applicant into custody and remanding him to the District Jail, Dadu and sent up the case to Sessions Judge, Dadu. No evidence has been recorded by the learned Civil Judge and F.C.M., Mehar but he has heard the complainant as well as the applicant which in my view is part of exercise of applying his mind to the case and nothing more. Simple omission to record that the bond of the applicant is cancelled will not vitiate the order. No illegality is found in such order.
25. ' For the foregoing reasons, this criminal miscellaneous application is dismissed.