JUDGMENT RAJA FAYYAZ AHMAD, J.- In this Criminal Petition filed under section, 561-A, Cr.P.C, order, dated 22.6.2004 passed by the Incharge Additional Sessions Judge/Special Judge under CNS Act.
Pisha has been sought for to be quashed whereby the appellant was ordered to be taken into custody and committed to Sub-Jail, Pishin on having been produced before the Court pursuant to the non-bailable warrant of arrest issued by the learned Court.
2. The brief facts of the case are that on 11.5.2004 Mateeullah Khan, Naib Tehsildar, Pishin lodged report with Levies Thana, Headquarter District Pishin to the effect that accused Sado Khan son of Din Muhammad, by caste Kakar, resident of Killi Dori. Sulmankhel has cultivated poppy crops in Mouza Band Malezai with the request that cultivated poppy crops be destroyed and action under the law be taken against accused Sado Khan. On such report Tehsildar Pishin namely Maqbool Anwar registered the case Crime No.61 of 2004 on the abovesaid date against nominated accused under section 4/5 of the Control of Narcotic Substances Act, 1997. After registration of the F.I.R.
Tehsildar Maqbool Anwar commenced with the investigation of the case.
3. After perusal of the documents filed with the memo; of criminal petition and hearing the petitioner's learned counsel, notice of the petition was directed, to be issued to the respondent, as well as; notice was also ordered to be issued to Mateeullah, Naib Tehsildar and Maqbool Anwar, Tehsildar, Pishin and they were further directed to appear in person along with the entire record of the case. Also, notice of Criminal Misc. Application No. 331 of 2004 for stay of proceedings of the case before the trial Court and Criminal Misc. Application No.322 of 2004 seeking for suspension of the impugned order was directed to be issued to the respondent. After completion of investigation, on 18.5.2004 incomplete challan for trial of the offence was submitted in the Court of earned Judicial Magistrate, Pishin for onward transmission to the Court of competent jurisdiction against the absconder accused, Sado Khan son of Amir Muhammad, caste Tarkaye Sulemnkhel against whom sufficient incriminating material according to the Investigating Officer had come on record during the course of investigation, whereas; the petitioner Sado Khan son of Din Muhammad, caste Sulemankhel Kakar arrested on 11.5.2004, was released by the Instigating Officer under section 169, Cr.P.C., for want of any incriminating evidence available/procured during the course of investigation on furnishing of P.R. Bond; with, the request that absconding accused Sado Khan son of Amir Muhammad, be proceeded against under section 512, Cr.P.C. The incomplete challan was forwarded to the learned Sessions Judge, Pishin/Special Judge. CNS Act for trial of-the offence against the absconding accused. The learned Sessions Judge, Pishin sent the incomplete challan along with the record and papers of the case after taking cognizance of the offence to the Court of Additional Sessions Judge/Special Judge under CNS Act, Pishin.
It is pertinent to note that on submission of challan before the Judicial Magistrate, Pishin non- bailable arrest warrant of the absconding accused was issued by the Judicial Magistrate, but the same could not be executed, eventually the learned Judicial Magistrate sent the case to the Sessions Judge being exclusively triable by such Court within the meaning of section 190(3), Cr.P.C.
The learned Additional Sessions Judge on receipt of the case file, registered the case and issued non-bailable arrest warrant of accused Sado Khan son of Amir Muhammad besides notice for appearance of the process server was issued, in case the arrest warrant was not executed;'simultaneously being cognizant of the fact that Sado Khan son of Din Muhammad released under section 169, Cr.P.C; notice was directed to be issued to the Investigating Officer calling for his explanation, he adjourned the case to 28.5.2004. On this date Muhammad Alam, Levies Khasadar produced unexecuted arrest warrant of accused Sado Khan son of Amir Muhammad, accordingly; again non-bailable arrest warrant of the said accused was ordered to be issued. The Investigating Officer (Tehsildar, Pishin) despite notice did not appear in Court, as such; again notice was directed to be issued to him to explain as to how he had released the accused under section 169. Cr.P.C.
Despite having been nominated in the F.I.R., so the case was fixed for 5.6.2004 on which date reply to notice was provided to the Court by the Investigating Officer/Tehsildar, Pishin, who sent an application to the Court to the effect that on account of death of his maternal grand-mother he could not appear in Court. Accordingly; the learned Trial Court adjourned the case to 14.6.2004 with the direction that notice be again issued to the Investigating Officer requiring him to appear in person on the said date. Tehsildar Pishin/investigating Officer appeared before the Trial Court on 14.6.2004. The learned trial Court after scrutiny of the documents observed that it was specifically alleged -in the F.I.R, lodged by the Naib Tehsildar that Sado Khan son of Din Muhammad has cultivated poppy crops on the land situated at Mouza Band Malezai, but during course of investigation, the Investigating Officer out of mala tides and deliberately implicated an unknown and untraceable person namely Sado Khan son of Amir Muhammad by caste Sulemankhel, as the one responsible for having cultivated the poppy crops on the said land, hence; the learned Sessions Judge, Pishin/Special Judge under CNS Act, who held the Additional charge of the Court of Additional Sessions Judge, Pishin, issued non-bailable arrest warrant of accused Sado Khan son of Din Muhammad, caste Kakar by observing that the Investigating Officer had released the nominated accused for reasons best known to him and simultaneously Investigating Officer was directed to arrest the said accused and submit challan against the nominated accused for trial within a week and the case was adjourned to 22.6.2004.
4. On the abovesaid date, the accused nominated in the F.I.R, was produced before the Court by the Investigating Officer Maqbool Anwar pursuant to the arrest warrant issued by the Court, who was taken into custody and was committed to Sub-jail, Pishin by observing that the accused was nominated in the F.I.R, wherein it was alleged that he has cultivated poppy crops on the lands, but the Investigating Officer and the complainant had introduced another person namely Sado Khan son of Amir Muhammad in the case, to screen the real accused, against whom sufficient evidence connecting him with the cultivation of the poppy crops was available.
5. The learned counsel for the petitioner and the learned A.-G. Have been heard at length, Maqbool Anwar Tehsildar Pishin/investigating Officer and Naib Tehsildar, Pishin namely Mateeullah have also been heard! Record of the case maintained by the Investigation Officer during the course of investigation of the case was provided to the Court by the Tehsildar for perusal.
6. Syed Ayaz Zahoor contended that no incriminating material whatsoever could be collected against the accused nominated in the F.I.R, connecting him with the commission of the alleged crime, rather during the course of investigation and in the light of the evidence of witnesses including report submitted by the Patwari countersigned by Naib Tehsildar Bandobast, the petitioner was found innocent, as the real culprit who had cultivated the poppy crops on the site/on a piece of unsettled land, responsible for the commission of the offence, after operation conducted for the destruction of the poppy crops made good his escape and shifted to unknown place, who was sent up for trial by means of incomplete challan submitted in the Court, whereas; accused nominated in the F.I.R, was discharged under section 169, Cr.P.C, therefore, in view of the material available with the Court, there was no legal justification for the learned Trial Court, to have passed the impugned order which is wholly unwarranted, illegal and void nor the petitioner could have been ordered to be taken into custody to face the trial. Further the learned counsel submitted that as per report submitted by the Tehsildar, Pishin under section 173, Cr.P.C, the petitioner was found innocent, therefore, in absence of any incriminating material, the learned Trial Court was not competent to have directed the Investigating Officer for submission of challan against the petitioner and to hold that sufficient evidence about the Cr.C. 17 involvement of the accused is available on record, which virtually rendered the accused/petitioner incapable to move even for bail to. The Trial Court. He next contended that in view of the two consecutive reports submitted by the Tehsildar/investigating Officer in response to the notice issued to him based upon the material collected during the course of investigation i.e. Statement of witnesses recorded by the Investigating Officer under section 161, Cr.P.C, inquiries made by him from the Naib Tehsildar, Pishin/first informant and the report of the Patwari; the petitioner was stated to have, been found innocent with the categorical assertion based on such material that the real accused was Sado Khan son of Amir Muhammad alias Meerak Aaka and not the accused nominated in the F.I.R., therefore, in the light of the material available with Trial Court, the petitioner could not have been ordered to be arrested and to face trial. According to the learned counsel in any case and without prejudice to his above urged grounds, the accused nominated in the F.I.R, (petitioner) at best could have been summoned to face the trial and secondly; the allegation against the accused made by the first informant at best was an information with regard to the commission of the alleged offence by which the machinery of the law was moved into action and was not by itself in the nature of an incriminating evidence, which during the process of investigation was not supported by any material, hence; the order impugned in this quashment petition is liable to be set aside. Lastly, the learned counsel submitted that in case the grounds urged by him do not find favour with this Court, the application filed on behalf of the petitioner for suspension of the impugned order may in the interest of justice be converted into application for bail and the petitioner in the given facts and circumstances of the case be admitted to bail pending disposal of the case. He placed reliance on the reported judgment i.e. 2002 SCMR 63, 1997 SCMR 304 and PLD 2001 Lah. 236.
7. The learned A.-G. Vehemently contested the grounds of arguments put forth on behalf of the petitioner by submitting that a positive and definite role was attributed/assigned to the accused (petitioner) nominated in the F.I.R., whose parentage was also mentioned in the report lodged by the Naib Tehsildar, who is supposed to be a responsible officer in the Tehsil, hence; the same cannot at this stage of proceedings, be lightly brushed aside. The plea taken by Tehsildar in his report and explanation submitted in the Trial Court that he during the course of investigation made inquiries from the Naib Tehsildar, Pishin/first informant, wherein Naib Tehsildar disclosed to him that secret information with regard to the cultivation of poppy crops by accused Sado Khan was received, appears to be misconceived and without any substance for the simple reason that in the F.I.R, even parentage of the accused was mentioned and secondly; no Zimni in respect of the slated inquiries from the first informant was maintained by the Investigating Officer nor any supplementary statement of the Naib Tehsildar, Pishin (Mateeullah) was recorded by the Investigating Officer, inasmuch as; he even did not record statement of the Halqa Patwari, Girdawar Halqa and the Naib Tehsildar Bandobast touching to the report submitted by the Patwari, Bandobast and countersigned by the Girdawar and Naib Tehsildar Bandobast. The learned A.-G.
Pointed out that the Investigating Officer finding the accused nominated in the F.I.R, as innocent could not have based his opinion on the *fact incorporated in the report of the Patwari that poppy crops were cultivated by accused Sado Khan son of Amir Muhammad without having examined the Patwari, Halqa Girdawar and Naib Tehsildar Bandobast under section 161, Cr.P.C. The learned A.- G., however; expressed serious reservations with regard to the conduct of investigation smacking deliberate and partial conduct of investigation by the Investigation Officer. He next submitted that as cognizance of the offence was taken, therefore, the learned Trial Court appropriately and within its legitimate exercise of jurisdiction procured attendance of nominated accused under coercive process and by committing him to judicial custody to face trial of the offence. The learned A-.G.
Maintained that the order impugned in this quashment petition is unexceptionable and for bail the petitioner can competently move to the Trial Court.
8. The case investigation file maintained by the Tehsildar. Pishin/investigating Officer shows that on 11.5.2004 after registration of the case he along with Levies staff and A.D.A.O. Proceeded to the site on which the poppy crops were grown and prepared the site map. It was noted in the Zimni of even date that the accused Sado Khan had brought an area (not mentioned) under cultivation of poppy crops which was destroyed by him except a few plants taken into possession by the Investigating Officer vide inventory prepared by him in presence of Naib Rasaldar and Dafedar Levies namely Jehangir Shah and Khan Muhammad, whereas; in the sketch map prepared by the Patwari, the area on which the poppy crops was grown has been marked and shown as the unsettled piece of land. This document also bears the signature of the Girdawar Mouza Band- Malezai and that of the Naib Tehsildar, Bandobast. On the right side margin of the document, the same has been marked to the Reader by the Tehsildar/investigating Officer under his initials, dated 14.5.2004 by making endorsement; 'to be kept on the file. The dates inserted on this document below the signatures respectively inscribed by Patwari 'Bandobast' Girdawar and Naib Tehsildar 'Bandobas' was, '17.5.2004', but subsequently; the dates so mentioned apparently by manipulation converted the figure'13'.
Below the above said sketch the Patwari Bandobast has made a report to the effect that in compliance with your order (Tehsildar) he along with Naib Tehsildar Pishin inspected the site on which the poppy crops were cultivated as per pointation, was found to be unsettled' land on which Sado Khan son of Amir Muhammad alias Meerak Aaka, caste Sulemankhel Tarkaye had cultivated poppy crops and; no entries in the Revenue Record in respect of such piece of land existed, as well as; on the said site no boring was found inexistence.
Apparently after manipulation; of the date initially inscribed below the signatures of Patwari, Girdawar and Naib Tehsildar Settlement, the said document was marked to the Reader, by the Tehsildar on 14,5.2004. We; confronted the Tehsildar to the Zimni written by him on 11.5.2004 which showed that he prepared the sketch on 11.5'2O04 but the same was not available on the record made available to the Court to which no satisfactory answer was given by the Tehsildar, who simply stated that he had prepared the same in presence of the Naib Tehsildar and the Levies staff including A.D.A.O. Pishin, but such document is not available on the record maintained by him during course of investigation of the case. Presumably the sketch of the site may have reflected altogether a different picture of the site on which the poppy crops were found existing, therefore, such document was removed from the case investigation file and instead another sketch was got prepared pursuant the orders of the Tehsildar/investigating Officer, in which a different site comprising part of unsettled land may have been shown as against the one on Which the poppy crops was grown in order to extent maximum benefit to the nominated accused to escape from the legal punishment.
The second Zimni, dated 11.5.2004 [that after preparation of the sketch of the site, the Tehsildar destroyed the standing poppy crops except a few plants taken into possession with the direction to Halqa Patwari to verify in the light of the Revenue Record as to the recorded ownership of the piece of land on which the poppy crops were grown. The Zimni, dated 12.5.2004 written by the Investigating Officer shows that custodial remand of accused Sado was granted by the Judicial Magistrate, whereas; the Zimni, dated 14.5.2004 shows that report from Halqa Patwari was received and the same was kept on the file, it was specifically mentioned in the Zimni of even date that in.
The report submitted by the Patwari, it was pointed out that on the unsettled piece of land accused Sado Khan son of Amir Muhammad alias Meerak Aaka has cultivated poppy crops, hence; from this Zimni, it appears that the sketch containing report of the Patwari was prepared on 14.5.2004 or prior to it or that, as above discussed the same was prepared on 17.5.2004 as it reflects from the document, but subsequently; the date was convened into figure '13' instead of figure '17' quite apparent from the date initially inserted below the signatures by the Patwari, Girdawar Halqa and the Naib Tehsildar 'Bandobast', and after that on 17.5.2004 or any other date, Zimni for the back date i.e. 14.5.2004 was written by the Tehsildar, it is astonishing to note that the petitioner was arrested initially on 11.5.2004 after registration of the case and as per report of the Patwari he inspected the site in presence of the Naib Tehsildar (Settlement), but the Investigating Officer did not record statement of either of them nor the statement of the A. D- A.O. Pishin was recorded under section 161, Cr.P.C., who as per Zimni, dated 11.5.2004 accompanied the Tehsildar Pishin to the site along with the Levies staff, where the Investigating Officer prepared the sketch of the site (not available on the record of the case, maintained by the Investigating Officer) as well as; the Tehsildar, Pishin on query by the Court admitted that he did not record the statement of the A.D.A.O., Pishin and the Naib Tehsildar, Pishin (first informant), who as per version of Investigation Officer as contained in his report filed on Court during course of investigation, on inquiry by Investigating Officer disclosed that secret information was received by him (Naib Tehsildar, Pishin) about the poppy cultivation having been made by accused Sado Khan.
It has been pointed out in the report submitted by the Patwari to the Investigating Officer that on the site forming part of unsettled land, Sado Khan son of Amir Muhammad had cultivated poppy crops and this report was countersigned by Gridawar and Naib Tehsildar (Settlement), On such urged fact reliance has been made by the Investigating Officer who even did not record statement of either of the officials and the Naib Tehsildar (Settlement). The report to such effect was either based on the personal knowledge of the Patwari or some information received or gathered by the Patwari, therefore, before putting any reliance on such stated fact it was obligatory for the Investigating Officer to have recorded the statement of the Patwari under section 161, Cr.P.C, and to have further interrogated the Naib Tehsildar (first informant), who categorically alleged in his report registered by the Tehsildar that the poppy crops were grown by Sado Khan son of Din Muhammad; caste Sulemankhel (nominated accused), whereas; Zimni, dated 15.5.2004 shows that the Investigating Officer scrutinized the case file and Mateeullah, Naib Tehsildar (the first informant) appeared before him, who during summary interrogation quoted to have stated to the Investigating Officer that through the secret information name of the accused was disclosed to be Sado Khan Sulemankhel, resident of Dori Sulemankhel, as such, it was Observed by the Investigating .Officer in the said Zimni that because all the inhabitants of Dori sulmankhel belong to Kakar tribe/caste, therefore, at the Initial stage pf the case, * Sado Khan Kakar was nominated as the accused, whereas; -in actuality father's name of accused Sado Khan is Amir Muhammad alias Meerak by caste Tarkaye, as he has come to know about it. Further it has been noted in the Zimni of the abovesaid date that in the meanwhile witness Allah Noor and Mehboob Khan have corroborated to the statement of the nominated accused, therefore, accused Sado Khan Kakar for want of evidenced was discharged under section 169, Cr.P.C, on furnishing of P-R. Bond in the sum of Rs.50,000 and the request for issuance of arrest warrant of real accused Sado Khan is being made to the competent Court of law. This Zimni does not show that statements of witnesses Allah Noor and Mehboob Khan were recorded under section 161, Cr.P.C, on me said date, however; their statements are available on the file which too does not bear the date on which their statements were recorded.
Mehboob Khan and Allah Noor in their statements have alleged that on a piece of waste land Sado Khan son of Amir Muhammad alias Meerak Aaka, caste Sulemankhel, Tarkaye, who resided in a tent near Killi Dori Sulemankhel had cultivated poppy crops, which was destroyed on 11.5.2004 by the Levies staff, but the Levies personnel arrested Sado Khan Kakar, who did not cultivate the same or he was concerned in. Any manner with the crops or the land on which poppy crops were grown/cultivated.
Also, photostat copies of sworn-in-affidavits of witnesses Mehboob Khan and Allah Noor besides one Muhammad Rasool and Dad Muhammad, dated 21.6.2004 are available on the record of the case made available to the Court by the Tehsildar wherein they have deposed that the piece of land on which the poppy crops were grown belongs to the State and that accused sadiq Khan son of Din Muhammad employed as a worker in a hotel at Karachi, According to them the poppy crops were cultivated by one Sado Khan son of Meerak Aaka, caste Sulemankhel, who has now shifted to some other unknown place after the raid. None of the Zimnis maintained in the case i.e., dated 11.5.2004 (two Zimnis). 12.5.2004, 14.5.2004 and the last one, dated 22.6.2004 bear the fact regarding production of affidavits or as to how these documents have come on record nor the state merits of deponents Muhammad Rasool and Dad Muhammad were recorded by the Tehsildar/investigating Officer. The Naib Tehsildar. Pishin (first informant) when confronted by the Court in respect of the inquiry/interrogation subsequently made from him by the Investigating Officer, Inferred, to above and the contents of report made by him; stated that report was lodged by him with the Tehsildar, Pishin, wherein he nominated accused with his parentage, on his personal knowledge and was not based upon any secret information.
The Last Zimni, dated 22.6.2004 shows that pursuant to the memo; dated 19.6.2004 containing order of the Sessions Judge, 'Pishin he arrested nominated accused Sado Khan son of Din Muhammad and produced him before the Court on respect of whom supplementary challan, noted to be submitted in the Court within two days, and; thereafter supplementary challan against the nominated accused was submitted in the Court of learned Sessions Judge, Pishin.
9. Initially incomplete challan No. 78 of 2004 was submitted against the absconder accused namely Sado. Khan son of Amir Muhammad alias Meerak Aaka on 18,5.2004, After receipt of positive report in respect of the poppy plants from the Chemical Expert, FSL, Quetta supplementary challan was submitted Before the Court by the Tehsildar, Pishin and lastly the second supplementary challan against accused nominated in the F.I.R, in compliance with the order of the learned Trial Court was submitted by the Tehsildar, Pishin who in response to the notice, dated 31.5.2004 and the subsequent notice, dated 19.6.2004 submitted his explanation and report in the Court of learned Additional Sessions Judge, Pishin. In the former report it has been pointed, out by the Investigating Officer that during course of investigation of the case report was called for from the Faiqa Patwari and Naib Tehsildar Halqa Bandobast and in compliance with his direction the Patwari in his report, dated 13.5.2004 pointed out that as per pointation of the site, in the light of the Revenue Record, accused Sado Khan Son of Amir Muhammad had cultivated crops a piece of unsettled land which has not been recorded in favour of any person. Further the Investigating Officer in his report submitted in the Court has submitted that the accused nominated in the F.I.R, in his statement under section 161, Cr.P.C, disclosed that the poppy crops were cultivated by Sado Khan son of Amir Muhammad, but due to misunderstanding he has been arrested in this case. Also it has been mentioned in explanation offered by the Investigating Officer that he personally visited the site in order to ascertain the facts during the course whereof people of the area told to him that the site on which the poppy crops were cultivated in fact brought under cultivation by the accused Sado Khan sop of Amir Muhammad and; n6t'. By- accused Sado Khan son of Din Muhammad and he thus on the site recorded the statements of two witnesses namely Mehboob Khan and Allah Noor, who supported to the version of the accused nominated in the F.I.R, and the witnesses further disclosed that the real accused after the operation for destruction of the poppy crops along with his children has shifted to some unknown place. The Investigating Officer in his explanation filed in the trial Court submitted that he also inquired from the first informant/Naib Tehsildar Pishin, who told to him that at the time of arrest in a secret information name of the accused was mentioned as Sado Khan son of Din Muhammad, by caste Sulmankhel, on which he and the first informant inquired from the people about such person, on which' the people told to the first informant that one person in the name of Sado Khan son of Amir Muhammad by caste Kakar Sulemankhel, lives in Killi Dori Sulmankhel, therefore, the first informant as, he disclosed to him on being inquired that the poppy crops were cultivated by Sado Khan son of Din Muhammad, but subsequently during the course of the investigation, he came to know that the real accused was Sado Khan caste Sulemankhel Tarakaye, who was living in a tent in Dori Sulemankhel and thus; the accused Sado Khan son of Din Muhammad due to misunderstanding was involved in the case, therefore, the said accused was not sent up for trial and was released under section 169, Cr.P.C, on furnishing of surety bond. The subsequent report, dated 22.6.2004 on the same lines was submitted in the Trial Court by the Tehsildar/investigating Officer.
9. Reverting to the contentions put forth on behalf of the petitioner, it would be beneficial and convenient to take into account the case-law cited by the learned Advocate for the petitioner, it has been held by the hon'ble Apex Court in the case of Safdar Ali Vs. Zafar Iqbal and others reported in 2002 SCMR 63 that Magistrate can lake cognizance of an offence even in case of negative report submitted by the police that accusation is baseless and no case is made out against the delinquents, and; Trial Court can summon the accused placed in column No.2 of the challan, to face the trial, as there is no legal bar whatsoever that at the first instance evidence should be recorded to ascertain as to whether prima facie case is made Court against the accused. The hon'ble Court while examining the provisions of section 190 and 191 Cr.P.C, held that the Magistrate while taking cognizance under section 190(l)(b), Cr.P.C, on a police report takes cognizance of the offence and not merely of a particular person charged in the report as an offender, therefore, it can issue process against other persons, it can also appear to Magistrate to be concerned in the commission of the offence on the basis of the police report and other material placed before him and in doing so Magistrate does not act under Clause (c) of section 190(1), Cr.P.C, In the second reported judgment passed in the case of Muhammad Sharif and 8 others Vs. State and another, 1997 SCMR 304 (on appeal from the common judgments/order of Lahore High Court, Lahore) with reference to the. Facts of the case, order passed by the Magistrate and the one passed by the Lahore High Court, it was noted by the hon'ble Supreme Court that numerous investigations at the level of D.S.Ps. And A.S.Ps, with divided findings which eventuality resulted into the cancellation of the case and discharge of the appellants on the request made by the local police as the Magistrate concurred with the last police report submitted under section 173, Cr.P.C.
The complainant in the-case thereupon invoked the jurisdiction of the High Court under section 561-A, Cr.P.C, for quashment of the order, dated 25.11.1992 whereby the learned Magistrate of First Class, Mianwali had cancelled the case and discharged the appellant after bearing the learned counsel for the parties. The hon'ble Single Judge of the High Court quashed order of the discharge passed by the Magistrate on the grounds that he should have passed the final order agreeing or disagreeing with the conflicting recommendations of the Investigating Officers after having carefully analysed the same, but the Magistrate without adopting such course by short orders approved the report of the last Investigating Officer. The hon'ble Supreme Court after having considered the facts of me case in the light of provisions of sections 173, 435/439 & 561-A, Cr.P.C, observed that the High Court having been misled by some Nikahnama produced before it during the proceedings had fallen into an error to interfere into order of police investigation before submission of challan by passing the impugned order under section 561-A, Cr.P.C., which course has been disapproved by the Supreme Court, consequently; the order passed by the High Court was set aside and order of the Magistrate was maintained whereby he by concurring with the police report submitted under section 173, Cr.P.C, had discharged the accused and cancelled the criminal case registered against them holding that revision against order of discharge passed by the Magistrate was not competent as the Magistrate while concurring with the report submitted by a police under section' 173, Cr.P.C, does not function as a criminal Court and the order so passed by him is not amendable to the revisional jurisdiction under sections 435/439. In the last quoted reported Judgment i.e. PLD 2001 Lah. 236 passed in the case of Muhammad Sharif Vs. The State and 3 others, with reference to the provisions of sections 63/169/173, Cr.P.C, in view of the given facts of the case, it was held that the accused in a criminal case is discharged by Magistrate only from his bond when his custodyus no longer required for the purpose of investigation and such order of discharge is only an administrative and executive act of a. Magistrate at a stage when the matter is still under investigation and it has yet to reach to the trial Court, and any question as to which the Court is to ultimately try the case is hardly relevant at such stage, it has further been held that the discharge of an accused does not amount to an acquittal order even smothering or termination of investigation of the case, and, at any subsequent stage during the investigation, order of discharge can be recalled by the Magistrate whenever it appears to his satisfaction that physical custody of the accused is subsequently required for proper investigation of the case, as well as; the accused discharged can even subsequently be summoned by the Trial Court, to face trial.
It is an admitted feature of the case that the accused nominated in the F.I.R, (petitioner) was not discharged by the Magistrate under section 63, Cr.P.C, rather; was released from custody on furnishing of the bond by the Investigating Officer during investigation of the case within the meaning of section 169, Cr.P.C, which implies even in absence of any direction to appear, if so required to appear before a Magistrate empowered to take cognizance of-the offence on a police report and to try the accused or send him for trial. The bond furnished by the accused/petitioner or copy thereof is not available on the record produced to the Court by the Investigation Officer. The Zimni, dated 15.5.2004 shows that P.R. Bond for appearance of the accused was ordered to be furnished by the accused, who admittedly on furnishing of the requisite bond was released from custody, it is pertinent to note that the accused nominated in the F.I.R, (petitioner) was not even placed in the column No .2 of the challan submitted to the Judicial Magistrate against accused Sado Khan son of Amir Muhammad, who during course of investigation of the case was found liable for the commission of the offence in the light of the material collected by the Investigating Officer, referred to above. The learned Judicial Magistrate obviously took cognizance of the offence on submission of the challan against the absconding accused under subsection (3) of section 190, Cr.P.C, and not of the accused being exclusively triable by a Court of Session, sent the case to such Court for trial of the offence, which after application of mind in the light of the record and papers sent to the Court with the incomplete challan and the F.I.R., took cognizance of the offence as a Court of original jurisdiction under section 193 (1), Cr.P.C, on 20.5.2004 by issuing coercive process in order to procure attendance of the absconding (Sado Khan son of Amir Muhammad) whereas; notice calling for the explanation of the Investigating Officer was directed to be issued as he had released the accused under section 169, Cr.P.C., and in the subsequent order, dated 28.5.2004 it was observed that the accused released from the custody by the Investigating Officer was specifically nominated as responsible for the commission of the offence in me F.I.R, and in the order, dated 14.6.2004 i.e. The date to which the case was adjourned; again it was observed by the learned trial Court that specific role of cultivation of poppy crops was assigned to the accused (petitioner) in the F.I.R., accordingly in order to procure his attendance, being a warrant case, his non-bailable arrest warrant was issued and further it was observed, obviously in the light of the material available with the Court that me accused/ petitioner was the person nominated for having cultivated poppy crops on the land, but the Investigating Officer released the accused for the reasons best known to him.
The above said orders have not been challenged in the quashment petition except the last one, dated 22.6.2004 whereby the Tehsildar/investigating Officer was directed to submit supplementary challan against the accused Sad Khan (petitioner) Order, dated 22.6.2004 impugned in the instant petition is reproduced hereinbelow:-- "Order Sheet. 22.6.2004 accused Sado Khan son of Amir Muhammad is absconding. L.D.A. Mr. Abdullah Khan is present, Maqbool Anwar, Tehsildar Afghan Refugees Pishin/I.O. Of the case is present. Accused Sado Khan son of Din Muhammad Caste Kakar has also been produced. He is nominated in the F.I.R, and the poppy crops were cultivated on his land. But the I.O. And Patwari introduced an other Sado Khan son of Amir Muhammad in this case in order to save the actual accused. Sufficient evidence is available to connect him with the cultivation of poppy crops. As such he is taken in the custody of this Court and be sent to sub Jail Pishin.
Maqbool Anwar Tehsildar Afghan Refugees Pishin is directed to. Submit supplementary challan against him within two days.
To come up on 26.6.2004 for further proceedings."
In the abovesaid order, again in the of the contents of the F.I.R, it was that accused, Sado Khan son of Din Muhammad was nominated as the accused, who had cultivated poppy crops on the land and in view of the record and papers of the case, it was observed in the order that the Investigating Officer and the Patwari introduced another Sado Khan son of Amir Muhammad as the accused in order to save the actual accused against whom sufficient evidence is available to connect him with the cultivation of poppy crops, thus; the accused produced in Court pursuant to the arrest warrant was ordered to be taken into custody and sent to the judicial lock-up. Simultaneously vide this order, the Investigating Officer was directed to submit supplementary challan against the abovesaid accused which he did. Bare perusal of the contents of F.I.R, lodged by Naib Tehsildar, Pishin shows that specific allegation about the cultivation of poppy crops by accused Sado Khan was leveled against him and his parentage was also mentioned in the F.I.R, and such report apparently was not based on any secret information received by the Naib Tehsildar, Pishin, therefore, the allegation as made in the F.I.R, in positive terms obviously connects the accused/petitioner prima facie with the commission of the offence and the learned Trial Court was not bound to accept or concur with the opinion of the Investigating Officer or the result of the investigation whereby the accused nominated in the F.I.R, was found innocent for being or not the actual person who had cultivated poppy crops and secondly the cognizance of the offence was since taken by the Judicial Magistrate on the report submitted to it in the form of incomplete challan under section 190(3), Cr.P.C, and not of the accused, hence; the learned Sessions Judge, Pishin was quite legally justified to issue coercive process against the accused nominated in the F.I.R, after haying taken cognizance of the offence under section 193(1), Cr.P.C, in respect of the case sent to the said Court by the Judicial Magistrate. The case law cited by the petitioner's learned counsel, rather; supports to the view taken by the learned Sessions Judge for procuring attendance of the accused/petitioner to face trial of the offence, In the reported judgment of Lahore High Court i.e. PLD 1998 Lah.523 (Muhammad Yaqoob Vs. The State), it has been held .That the police after finding an accused to be innocent in investigation must place his name in column No.2 of the report and leave the final determination of his guilt or innocence to be made by the Court. The omission on the part of the police or the investigating agency to do so cannot affect the Jurisdiction of the Sessions Court to pass an appropriate order to summon the accused though; found to be innocent by the police and that if a case is sent up for trial to the Sessions Court with brief facts of the case stated in column No.7 of the Ghallan, Court is at liberty to summon any person appearing to be involved in commission of an offence irrespective of the fact whether his name find mentioned in Column No.2 or 3 of the challan or not. Similar view was taken in the case of Qurban Ali Vs. The State by the hon'ble High Court reported in 1982 PCr.LJ. 52, in which the hon'ble Single Bench of the Court held that Magistrate on receipt of report submitted to it under section 173, Cr.P.C., is free to agree or not with the conclusion reached by the Investigating Officer and not prevented from taking, cognizance of the case under clause (b) of section 190, Cr.P.C, and the Court of Session in view of the provisions of' section 193(1) (as amended) on receiving case from the Magistrate becomes seized of the entire case, therefore, can summon any person concerned with the commission of the offence irrespective of the fact, of the accused having been declared innocent by police by placing him in column No.2 of the challan.
In the instant ease the accused no doubt has not been summoned to face trial of the offence, but his non- bailable arrest warrant was issued pursuant to which he was arrested and brought before the Court. As far as cognizance of the offence taken by the Court of Sessions under section 193(1), Cr.P.C, of the case sent to it by the Magistrate for trial within the purview of subsection (3) of section 190, Cr.P.C-, it is not always necessary for the Court of Session to take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190 subsection (3), Cr.P.C, in view of section 202 (1). Cr.P.C, (as amended) by virtue of which, any Court on receipt of a challan of an offence of which it is authorized to take cognizance or which has been sent to it under section 190, subsection (3) or transferred lo it under section 191 or section 192, Cr.P.C, may, if it thinks fit, for reasons to be recorded postpone the issue of process for compelling the attendance of the person complained against and either inquire into the case itself or direct any inquiry or investigation to be made by a Police Officer or by such other person as it thinks fit for the purpose of ascertaining the truth or the falsehood of the complaint. The proviso to subsection (1) of section
202. Cr.P.C., and the subsections (2), (3) and (4) to the abovesaid section are not relevant to the case in hand except subsection (1), which relates to the powers of a Court including Court of Session to which a case has been sent under section 190 subsection (3) by a Magistrate for trial to be exercisable before taking cognizance of the offence, which may, if it thinks fit, for reasons to be recorded postpone the issue of process for compelling the attendance of the person complained against and either to inquire into the case itself or direct an inquiry or investigation to be made as provided in the abovesaid subsection, but; in the instant case, the learned Sessions Judge did not deem it appropriate to exercise any of such powers as have been invested on the Court by virtue of provision? Of subsection (1) of section 202, Cr.P.C., evidently reflects that on the receipt of the case from the Magistrate and application of mind by the said Court, cognizance of the offence was taken by the Court in view of entire facts and material produced with the report submitted under section 173, Cr.P.C, despite cognizant of the powers vesting in such Court as above mentioned to hold inquiry or investigation by postponing the issuance of process for compelling the attendance of the person accused of the offence, unequivocally indicates that on conscious application of mind to the entire facts of the case and material produced before it, the Sessions Judge took cognizance of the offence and issued process for compelling the attendance of the accused, nominated in the F.I.R. Non-placing of-the said accused in column No.2 of the challan for having been found innocent by the. Investigation Officer was inconsequential, and therefore, in such view of the matter direction by the Trial Court for submission of the supplementary challan does not nullify the effect of cognizance of the offence taken by the Trial Court including the issuance of process against the nominated accused. As far as; instead of issuing the summons, the attendance of the accused was compelled by issuing his non-bailable arrest warrant was permissible within the meaning of section 204 (as amended) by Law Reforms Ordinance, 1972 item-81 whereby the word 'Magistrate' used in the original Subsection (1) of section 204, Cr.P.C, was substituted by the word 'Court' which provides that if in the opinion of the Court taking cognizance of an offence, there is sufficient ground for proceeding and the case appears to be one in which according to the 4th column of the 2nd schedule a summons should issue in the first instance, it shall issue summons for attendance of the accused and if the case appears to be one in which as per said column warrant should issue in the first instance, it may issue a warrant or if, it thinks fit, a summons for causing the accused to be brought or to appear at a time before the such Court or if it has no jurisdiction itself to some other Court, having jurisdiction in the matter, and; by virtue of subsection (2) of section 204, Cr.P.C, the provisions of section 90, Cr.P.C, shall remain unaffected;, The learned Sessions Judge, in the instant case did not deem it appropriate to issue summons for appearance of the accused, who in its discretion in accordance with the 4th column of 2nd Schedule being a warrant case issued arrest warrant of the accused/petitioner for . Procuring his attendance. The powers so vesting in the Court appears to have not been mis exercised nor it acted in violation of section 204, Cr.P.C., hence; the powers so exercised by the learned Sessions Judge is immune from being attacked on any ground.
Adverting to the contentions of the petitioner's learned counsel that in view of the consecutive reports submitted by the Tehsildar/investigating Officer in response to the notices issued to him by the learned Trial Court and the material available on record since the petitioner was found innocent by the-Investigating Officer, therefore, the exercise of powers by the learned Trial Court for procuring his attendance through coercive process, was illegal, void and without jurisdiction, to us in view of the above discussion and reasons is without any substance. The explanation and subsequent report submitted by the Investigating Officer in response to the notices issued to him by the Court by itself are not the material collected during the course of investigation or the case, rather the same are based on the material referred, to hereinabove in the light whereof including the F.I.R, after conscious application, of the mind by the Court cognizance of the offence was taken by the learned Sessions Judge, which at the relevant time held the additional charge of the Court of Additional Sessions Judge, Pishin, to whom the case was transferred after taking cognizance of the offence, In so far a& the plea taken during the course of arguments that the accusation as levelled against the petitioner/accused was based upon information of the first informant, does not appear to be sound, as the bare reading of the contents of the F.I.R, show that specific allegation was made by the first informant/Naib Tehsildar, Pishin that poppy crops on the land was cultivated by the accused nominated in the F.I.R., (petitioner), whose parentage was also given in the report, therefore, at this stage of the proceedings, the plea cannot be appreciated as it will be open for the accused to test the version of the first informant, as given by him in his report, at the trial by exercising his 'tight, of cross-examination, and; the observation recorded by the learned Trial Court in the impugned order that sufficient evidence is available against tee nominated accused connecting him with the commission of crime, appear to be not conclusive and are only tentative in nature having no material effect on the evidence that may be adduced at the trial of the case nor such tentative observations in any way amounts to the prejudging of the criminal liability of the accused and, the bail plea, if any; be moved in the Trial Court obviously will be disposed of by the Trial Court on its on. Merits and in accordance with law. Therefore, we; do not deem it appropriate to convert the application for suspension of the impugned order into an application for bail, as the petitioner is at liberty to move to the Trial Court for us bail and me same if filed, shall be decided independently in accordance with law on its on. Merits after hearing the parties. The Trial Court to proceed with the case without being influenced by any observation recorded hereinabove with regard to the conduct of investigation of the case made by the Tehsildar, Pishin and the learned Trial Court is supposed to take into account such an aspect of the case independently in overall facts and circumstances of the case and the evidence before it. The Tehsildar, Pishin (Maqbool Anwar) in the light of above referred documents prima facie appears to have not acted and conducted investigation of the case independently and impartially, therefore, copy of this order be sent to the Chief Secretary. Government of Balochistan for taking appropriate action against him, as may be warranted under the law.
Thus; in view of the above discussion and reasons this Quashment Petition being devoid of any substance, in dismissed.