' MUHAMMAD AKRAM QURESHI, J.---Precisely facts of the present case are that the petitioner lodged F.I.R. No.548, dated 3-7-2001 under sections 302/324 read with sections 148/149, P.P.C., Police Station Gunjmandi, District, Rawalpindi.
2. The investigation was carried out by the local police. During the course of investigation, some grievance cropped up in the mind of the petitioner resulting in the filing of Writ Petition No.748 of 2003, in which this Court issued orders to S.H.O., Police Station Gunjmandi, District, Rawalpindi, to submit report under section 173, Cr.P.C. Before the learned Magistrate, which was submitted before him, who vide order, dated 31-7-2003 did not agree with the police findings and thus took cognizance of the offence. The case was sent up to the Court of session and it was laid before the learned Session Judge, Rawalpindi for orders on 10-9-2003. The learned Sessions Judge entrusted the case to the learned Additional Sessions Judge, Rawalpindi when it was pending with him without any progress.
3. The complainant also filed a complaint before the learned Magistrate in which statement of complainant was recorded under section 200, Cr.P.C. And inquiry under section 202, Cr.P.C. Was also conducted. The learned Additional Sessions Judge, Rawalpindi summoned,the accused to face trial. The learned ASJ, is proceeding with the complaint case.
4. The report of police officer is defined in section 173, Cr.P.C. Is as under:-- "Report of police officer.---(1) Every Investigation under this chapter shall be completed without unnecessary delay, as soon as it is completed, the officer-in-charge of the police station shall through the public prosecutor.
(a) 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 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 offence was first given: ' Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer-in-charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any case 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) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial.
' Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.
(5) Where the officer in charge of a police station forward a report under subsection (1), he shall along with the report produce the witnesses, in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court, on the date fixed for trial.
5. The word complaint has been defined in Cr.P.C. In section 4(h) which is as under:-- "Complaint" means the allegation made orally or in writing to a Magistrate, with a view of his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer;
6. A Magistrate takes cognizance of an offence under section 190, Cr.P.C. The provisions of section 190, Cr.P.C. Are 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 them 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 the Court of Session for trial).
7. A Court of Magistrate may take cognizance of the offence either on receiving a complaint of facts which constituted such offence or upon a report in writing of such facts made by any police officer or upon information received from any person, other than the police officer or upon his own knowledge or suspicion that such person has committed an offence which may be tried by him or sent to the Court of Session for trial.
8, A plain reading of section 190 of Cr.P.C. Would indicate that under section 190(1) Clause (b) A Magistrate of First Class takes cognizance of an offence upon report made by police officer under section 173, Cr.P.C., which may be positive or negative.
9. It is further clear from the section 190(2), Cr.P.C. That a Magistrate taking cognizance under subsection (1) of an offence triable exclusively by the Court of Session shall without recording arty evidence send the case to the Court of Session for trial.
10. When a case is sent up to the Court of Session, the provisions of section 193, Cr.P.C. Come to the operation which are as under:--
193. Cognizance of offences by Courts of Sessions.---(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction (unless the case has been sent to it under section 190, subsection (2)
(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Provincial Government by general or special order may direct them to try, or as the Sessions Judge of the Division, by general or special order, may make over to them for trial.
11. Once a report of police officer is submitted to the Court of Session, the Sessions Judge or Additional Sessions Judge, as the case may be, takes cognizance of the offence under section 193, Cr . P.0 .
12. The word cognizance has not been defined in. Cr.P.C. Cognizance is application of mind by the Court on the facts and circumstances of the case. A Court taking cognizance of offence as to consider:--
(i) Whether some offences falling within its jurisdiction is made out or not?
(ii) Whether offence is committed in its territorial jurisdiction?
(iii) Who are the person responsible for the commission of offence?
(iv) Whether in Courts opinion, sufficient grounds are existing for proceeding with the trial?
13. After considering the above facts, the Court will have to decide as to whether it should issue process in the shape of summons or warrants for compelling the attendance of the accused. For this purpose, he will have to glance fourth column of Schedule H of Cr.P.C. If according to the said schedule, summons should issue in the first instance, it should issue the summons and if as per that column of schedule, warrants should issue in the first instance, it may issue warrants or if it thinks fit a summons for causing the accused to be brought or to appear at the certain time before such Court.
14. In the present case, learned Additional Sessions Judge, as appears from the facts and circumstances of the case, took cognizance of the offence on the basis of complaint of facts but showed his reluctance to proceed further on the basis of the report of police officer.
15. If the Court of Session has taken cognizance on the basis of complaint and report of police officer, it is required to process both the cases in accordance with the provision of section 193 read with section 204, Cr.P.C. Till this stage, both the cases will be dealt with independently. Accused summoned in the complaint case or in the challan case would be dealt with separately, supplied copies of required documents under section 265-C, Cr.P.C. In the police report case, the compliance of section 265-C(1) and in complaint case section 265-C(2), would be made.
16. Before framing the charge, the learned trial Court will have to pass an order keeping in view the precedent reported as "Nur Ellahi v. The State etc. (PLD 1966 SC 708), Zulifqar Ali Bhutto v. The State (PLD 1979 SC 53), Atta Jilani, v. The State (1980 PCr.LJ 901) and Muhammad Bohra and another v.
The State (PLD 1989 Lahore 18).
17. If the set of accused are different in complaint case and report of police officer's case then the learned trial Judge will follow the principle of Nur Ellahi's case. He will proceed with the complaint case first, frame the formal charge, record evidence of witnesses of the complaint case as P. Ws.
Thereafter, he, will summon the witnesses of the police report case, if not already examined as CWs. And provide the complainant and accused an opportunity to cross-examine them.
Thereafter, he will record the statement of accused and defence witnesses (if any), completing the process of summoning up under section 265-G, Cr.P.C., he will, then, announce the judgment in the said case. In case of conviction of accused in the complaint case, the prosecutor would be given an opportunity to withdraw the police report case and otherwise the Court shall proceed with the police report case, frame the charge, examine the witnesses for the prosecution and then record the evidence of the witnesses of the complaint case as C.W. By providing an opportunity to the prosecution and the accused to cross examine the witnesses for the prosecution, record the statements of the accused and DWs. If any, and summoning up the case and announce the final judgment.
18. If the 'accused in the complaint case and First Information Report case are same, then the trial Court would consolidate both the cases and hold the proceedings in the complaint or case initiated on police report. He will frame the formal charge, examine all the witnesses mentioned in the complaint and police report case and announce one judgment in both the cases. In that eventuality, the complaint case and police report case would be considered to be one case from the stage of order of consolidation of trial.
19. While dealing with the present case, learned Additional Sessions Judge did not observe the above-mentioned precedents and relevant provisions of Cr.P.C. The conduct of learned Addl: Sessions Judge, Rawalpindi was not in accordance with law.
20. Resultantly, the present writ petition is accepted and impugned order of learned Additional Sessions Judge, Rawalpindi, dated 20-11-2003, is set-aside. He is directed to proceed further with the police report case observing the provisions of section 193 read with section 204, Cr.P.C., before framing of charge in the complaint case initiated upon the report of Police Officer. He will have to, then pass an order keeping in view the above mentioned Nur Ellahi's or Bhutto's case.
21. On Court querry, learned counsel for the petitioner and learned counsel for the respondents informed the Court that the accused in the case initiated upon the police report and complaint are the same. Therefore, learned Additional Sessions Judge would consolidate both the complaint case and the challan case then proceed to frame charge, complete all the proceedings of trial as referred above. Noor Ellahi's case reported as PLD 1966 SC 708 would not be applicable in the present case.
' In the above circumstances, the proceedings held by the learned Addl. Sessions Judge Rawalpindi in the complaint case subsequent to supply of copies are declared illegal and void. The learned trial Judge will bring both the above cases at the stage of framing of charges, consolidate both and held the proceedings in either of the two cases, examine all the witnesses of both the cases as P. Ws. And then after fulfilling the required formalities announce one judgment in both the cases.
' With above observation, present writ petition stands disposed of.