' MUNIB AHMAD KHAN, J.---All the above four matters are being disposed of by this judgment as question involved in them is in respect to the power of Magistrate under section 190, Cr.P.C.
Towards refusal or acceptance of the police report under section 173, Cr.P.C.
2. Criminal Miscellaneous Application No,22 of 2007 pertains to F.I.R. No,31 of 2004 registered under section 17/3 EHO read with sections 427, 436, 447, P.P.C. In the said matter the police submitted its report for cancellation of F.I.R. Under class B'. The said report was accepted by the Magistrate. The applicant has impugned the said order on the ground pointed hereunder.
3. Criminal Miscellaneous Application No,31 of 2007 pertains to Crime No,88 of 2006 registered under section 17(2) ENO read with section 33-A(ii), H-(2), P.P.C. In that matter the police submitted its report under class 'B'. But the said report was not accepted by the Magistrate and he ordered for submission of challan against accused vide order dated 26-2-2007.
4. The Criminal Miscellaneous Application No,33 of 2007 is in respect to F.I.R. No,1 of 2007 recorded under section 17/3' EHO. The Magistrate in this matter has agreed with the police version submitted to it under section 173, Cr.P.C. By which the case was disposed of under class 'C'.
5.. In Criminal Miscellaneous Application No,6 of 2007 the matter relates to F.I.R. No,74 of 2006 lodged under sections 337-H(2), 147, 148, 149, 504, 114, P.P.C. The I.O. Of the matter did not agree with the version of the complainant and declared the case under 'B' class, besides, he did submit proceeding under sections 182 and 211, Cr.P.C. For action against complainant which was accepted by the Magistrate by his order dated 3-11-2006 and issued bailable warrants.
6. Now Messrs Ali Nawaz Ghanghro and Ahmed Ali M. Shaikh, both the learned counsel have raised twofold objections firstly, that the Magistrate cannot take cognizance under section 190, Cr.P.C. In respect to the offences which are not triable by him and he should send police papers, including police report, to the competent Sessions Court in such type of cases. The second ground of the learned counsel is that even otherwise the Magistrate has to hear the party who has been affected adversely by the order whereby he has 'accepted or rejected the police version. Mr. Ghanghro has pointed out that in Criminal Miscellaneous Application No,22 of 2007 counsel for the complainant raised objection before the learned Magistrate regarding his competency, who entertained the police report as the offence was under section 17(3) EHO with other sections of P.P.C. But the learned Magistrate turned down the arguments and the order impugned in that Criminal Miscellaneous Application No,22 of 2007 was passed without hearing the complainant. From the impugned order it has been observed that the contention of the learned counsel in respect to the raising of issue towards the competency is recorded by the Magistrate. It is apparent from the said order that relying on the argument of the counsel for the complainant the Magistrate sent papers to the Sessions Judge but same were remanded back to the Magistrate for passing order on it.
Thereafter the Magistrate has briefly discussed lacunas in the F.I.R. Regarding delay and has assessed the evidence available and thereafter he agreed with the police version towards the acceptance of case under class 'C'.
7. In Criminal Miscellaneous Application No,31 of 2007 the learned Magistrate passed order dated 26-2-2007. From the said order it appears ,that the Magistrate did not agree with the finding of Investigating Officer as he recorded statements of six witnesses under section 162, Cr.P.C. Before the Investigating Officer and on the basis of those statements he declared the case under class The learned Magistrate after perusal of the record opined that the medical certificate of the complainant/injured containing injuries as Shajjah-e-Mudhihah, Khafifah and Damiyah were not given weight by the Investigating Officer. While witness Attaullah, of the complainant, has also supported the complainant. In the circumstances the learned Magistrate ordered for submission of challan.
8. In Criminal Miscellaneous Application No,33 of 2007 the learned Magistrate has recorded his finding by stating that the police papers and 'statement of prosecution witnesses were gone through very carefully and thereafter he accepted the police version of class `C" towards cancellation of F.I.R.
9. As far as Criminal , Miscellaneous Application No,6 of 2007 represented by Mr. Ahmed Ali M.
Shaikh, the order of the Magistrate is in 'following words:-- ' ORDER ' Registered and issue B.Ws of Rs,20,000 each and P.R. Bond.
(Sd.), 3-11-2006.
' 1st Civil Judge and J.M. Kandhkot."
10. To support their contention that the Magistrate has no power to take cognizance of the offences which are not triable by him, the learned counsel have referred to the case of Hussain Ahmad v.
Irshad Bibi 1997 SCM R 1503, Ghulam Dastagir v. State 2007 YLR 930, Abdul Qadir v. State 2000 PCr.LJ 520 and Farooq Sumar v. State 2005 PCr.LJ 1023.
11. On the other hand, Mr. Muhammad Ismail Bhutto, the learned State counsel, opposing the contention of the learned counsel has argued that the objection raised above is misconceived as the Magistrate can take cognizance of any case submitted to him by the police through its report under section 173, Cr.P.C. He submits that the Magistrate did not accept the police report for the purpose of trial but for the purpose of taking cognizance and if the matter is not triable by him then papers are sent to the Sessions Judge and if triable by the Magistrate then they are dealt with accordingly. He submits that the orders in Criminal Miscellaneous Application No,22 of 2007 and 31 of 2007 are proper while order in Criminal Miscellaneous Application No,33 of 2007 is not a detailed order but even then it seems that the Magistrate has gone through the papers. He submits 'that the matter in, this case can be remanded back to the Magistrate for a detailed order. He has also not supported the order of Judicial Magistrate in Criminal Miscellaneous Application No,6 of 2007 on the ground that it is not a speaking order. To support his contention in respect to the power of the Magistrate towards taking cognizance, he has relied upon the case of Safdar Ali v. Zafar Iqbal 2002 SCM R 63.
12. After hearing the learned counsel it is to be pointed out that the above issue was also taken up in similar matter i,e, Criminal Miscellaneous Application No,151 of 2006 which was disposed of by order dated 10-5-2007 whereby the above contention of the learned counsel in respect to the cognizance by the Magistrate was dispelled. Now to scrutinize the above issue in more detailed way, I have taken up this issue in the light of authorities referred to by the learned counsel. The case law cited by the learned counsel for the applicant reported as Hussain Ahmad v. Mst. Irshad Bibi 1997 SCM R 1503 does not support the contention of the learned counsel. By the said authority it has been held that the power of the Magistrate towards entertaining the report under section 173, Cr.P.C. Is administrative in nature and cannot be intercepted by the High Court under section 435 read with section 439, Cr.P.C. But same can be looked into under section 561-A, Cr.P.C. Being inherent power of the High Court. From the above said case law there is no support to the contention of the learned counsel that the Magistrate cannot entertain a police report under section 173, Cr.P.C. When it pertains to crime triable by the Sessions Court.
13. The case law reported in 2007 YLR 930 also does not support the learned counsel in respect to the power of the Magistrate as the same has discussed the merit of the case and by observing that there was civil litigation as well as counter report, the order of the Magistrate for nonacceptance of police version towards cancellation of case in `B' class and order for submission of challan, was quashed.
14. In the case of Abdul Qadir v. State reported in 2000 PCr.LJ 520 this Court has discussed the power of Executive Magistrate prior to and after promulgation of the Legal Reforms Act, 1997 whereby the Executive Magistrate and Judicial Magistrates were separated. The learned counsel have relied upon para. 9 from the above judgment. It is apparent that the jurisdiction of the SDMs prior to the separation of the judiciary and thereafter has discussed and after observing that the SDMs could only intervene in the matter of preventive matters, it was held that they can take action in respect to the certain matters pertaining to specific chapters of Cr.P.C. i,e, Chapters VIII, X, XIII and XIV. The said case law does not support contention of the learned counsel as para.9 of the same judgment is clear to the extent that irrespective of the nature of the offence the Magistrate can take the cognizance of the offence. Para. 9 of the above said judgment is reproduced as under: "9. Having held above, we proceed to examine whether learned S.D.M. Was competent to take cognizance of the offence in relaiion to which he passed an order on the summary submitted by Superintendent of Police for cancellation of the F.I.R. For want of evidence or otherwise. Plain answer to this question would be in negative for according to Schedule II to the Criminal Procedure Code, the offences referred to above are ordinarily triable by the Court of Session and not by a Magistrate of the First Class. The position in law is very clearly amplified after the separation' of the Judiciary from the Executive with effect from 20th March, 1996 when Legal Reforms Ordinance XL of 1996 was promulgated which assumed the status of Legal Reforms Act, 1997 with effect from 3rd July, 1997.
Now section 28 of the Criminal Procedure Code which enumerates the categories 'of Magistrates stipulates that offences falling in Chapters VIII, X, XIII and XIV of Pakistan Penal Code, except offences specified in section 153-A and section 281 of the said Code, shall be tried by the Executive Magistrate. Admittedly offences mentioned in the F.I.Rs, framing the subject-matter of both the petitions do not fall under Chapters VIII, X, XIII and XIV of the Pakistan Penal Code which have now been assigned to the jurisdiction of Executive Magistrates after the separation of Judiciary from Executive, and thus, it can be safely concluded that learned S.D.M. Was not competent to take cognizance of such offences and to try the accused or to send him for trial before a competent Court of law."
15. In the case of Farooq Sumar v. State 2004 PCr.LJ 1023 cited by the learned counsel for the applicant in respect to the conduct of Magistrate when police report is submitted to him.
According to said judgment, the Magistrate has to pass an order keeping in view the material available before him but he should not assume the role of investigating officer. The learned counsel towards contention has cited para.11 of the said judgment which is reproduced hereunder:- "11. In present case order, dated 6-6-2002 passed by Magistrate on the report submitted by Investigating Officer does not indicate that the learned Magistrate had considered the material on record and found it to be sufficient for proceeding against the accused. He passed an order for verification of the facts from the complainant. This way he assigned himself the role of Investigating Officer which was outside the scope of subsection (3) of section 173, Cr.P.C. After that the Magistrate went, beyond the scope of that order also and examined the complainant and his three witnesses on oath and then passed another order, dated 13-7-2002 and that also after hearing the Advocate of complainant and Prosecuting Sub-Inspector. In that order he referred to the statements of complainant and his witnesses ignoring the material collected during the investigation and ordered the registration of case against applicants/ accused for offences under sections 342, 109, P.P.C. By same order he also issued bailable warrants in the sum of Rs,30,000 (Rupees thirty thousand) against the accused/applicaMs. This exercise was entirely outside the scope of section 173(3), Cr.P.C."
16. From the above, it seems that this Court has not agreed with the procedure adopted by the Magistrate as, learned. Magistrate in the first instance, for verification of the facts examined complainant and three witnesses on oath and thereafter passed an order. The same conduct was not appreciated as by that learned Magistrate assumed the role of Investigating Officer. The judgment cited by the Mr: Bhutto in the case of Safdar Ali v. Zafar Iqbal 2002 SCM R 63 is relevant in the matter and specially its para,8 which is reproduced as under:- "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 only 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 provision 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."
17. From the above citations as well as after arguments of the learned counsel the contents of section 190, Cr.P.C. Are to be kept in mind and for convenience the same are reproduced as under:- - "
190. Cognizance of offences by Magistrate.--(1) Any Magistrate 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:--
(a) upon receiving a complaint of facts which constitute such offence;
(b) 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 Session for trial.
(2) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to Court of Session for trial.
18. The contention of learned counsel that the Magistrate cannot take cognizance of case of which trial is not available with him is totally misconceived. From the above section it is apparent from subsection (1) of above section that "any offence" has clearly been mentioned which give unfettered powers to the Magistrate to deal with any case for the purposes of their cognizance on police report irrespective of the section of law mentioned in the F.I.R. The said section is also clear and point out the difference between word "cognizance" and "trial" as subsection (1) is limited to the extent of cognizanceand when the Magistrate after taking the cognizance is of the opinion that the gist of the accusation is triable by Sessions Court, then he will resort to sub-clause- (2) and will send the papers to the Sessions Court but without recording evidence.
19. The word "cognizance" has been defined in Oxford English Dictionary as "the action of taking judicial notice Or to take account of" while according to Black's Law Dictionary, "(1) The right and power to try and determine cases. (2) The taking of judicial. Or authoritative notice, (3)
Acknowledgement or admission of an alleged fact."
20. From the language of section 190, Cr.P.C. It is clear that there is no restriction on the part of the Magistrate to take cognizanee/notice of any case. There is no procedure defined under the said section as to. What mode of scrutiny is to be adopted by the Magistrate towards sorting out the version of the police hence the Magistrate has to act according to his wisdom and judicial acumen which can differ in each case. However, towards the assessment and scrutiny of police version, the Magistrate can interrogate the witnesses for the purposes of 'authentication of their version which police claim that it has been given by them and can also be taken an account of the other documents submitted by police, e.g., pendency of civil litigation or counter cases etc. However, the Magistrate cannot record evidence of the witnesses or of the complainant nor can examine the defence witnesses as this will amount to initiation of trial which is not permitted under the law as, if such a situation is allowed then formation of opinion by the Magistrate after such an exercise will amount to judgment and that will affect the trial of the accused which may be conducted by another Magistrate or by Sessions Court if the section of the law is triable by that court. However, the learned Magistrate is required to give his finding toward the assessment of material submitted before him and in his summarized way he should record his agreement or disagreement with the police version but he cannot straightaway order of acceptance or rejection of the police version.
21. In the light of above discussion I find that the orders passed by the learned Magistrates in Criminal Miscellaneous Nos. 22, 32 and 33 of 2007 are proper and they cannot be questioned hence these Criminal Miscellaneous Applications are dismissed while Criminal Miscellaneous Application No,6 of 2007 is accepted with the direction that the stereotype order is not warranted under the law, said order is recalled and case in Criminal Miscellaneous Application No,6 of 2007 is remanded back to the learned Magistrate to pass a summarized order which should show that he has assessed the material brought before him. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.