1. ' MRS. YASMIN ABBASEY, J.---Case of prosecution is that on 5-2-2007 complainant Ghulam Sarwar reported that while cutting sugarcane a dispute arose in between Ali Sher, Ali Bux son of Jamshed and Ramzan son of Muhammad Bux Khokhar wherein Ali Bux received injuries on his head. He raised cries, which attracted complainant's son Javed Iqbal, Muhammad Sajid and his nephew Azam son of Abdul Majeed. They reached at the place of incident situated at Katcho Panj Footi Road adjacent to land of Fazil Khokhar just to settle and rescue Ali Bux. On the same day at about 2-30 hours Naeem Akhtar and Yaseen came on the motorcycle and challenging deceased as to why he had fought with Khokhar haris. Although deceased tried to clear the actual fact, but on the instigation of Yaseen, Naeem Akhtar made straight fire at Javed Iqbal which hit on his abdomen, he was taken to hospital but could not survive. After leaving the dead body at hospital, complainant came to lodge the report. In complaint, complainant had specifically named Naeem Akhtar as a person who at the instigation of Yaseen Arain has murdered his son Javed Iqbal by pistol.
2. ' Applicant Naeem Akhtar Arain approached the trial Court for grant of bail but as he could not succeed there; therefore present bail application had been moved.
3. ' Learned counsel for the applicant has taken different grounds for grant of bail in his favour. First is that, the F.I.R. Is delayed by 6 hours with no cogent reason. Secondly that inspite of deleting name of applicant for want of evidence and placing him in column No,2 of the challan, Judicial Magistrate had not accepted the report of Investigating Officer and ordered for issue of process which is void and without jurisdiction, as in murder case under section 302 P.P.C., the trial Court is only the Court of Session to reject the submissions made by the Investigating Officer as the case was exclusively triable by the Court of Session. It is further contended that before passing impugned order dated 28-2-2007 for issue of process against this applicant no notice was issued to the applicant giving him an opportunity to defend this case. So far the factual aspect of the case is concerned, learned counsel has referred to the statement under section 164 Cr.P.C. Of P.W. Haji Ibrahim, Muhammad Hanif Mughal and has argued that in fact this applicant Naeem was not present at the place of incident on that particular date. And time when dispute between Soother and Khokhar took place wherein accused Ali Sher took out pistol. According to P.W. As deceased Javed Iqbal tried to hold the arm of accused Ali Sher to restrain him to make fire but accidentally fire was shot which hit Javed Iqbal. So according to learned counsel that is not applicant who had committed murder of deceased Javed Iqbal but it was accidental incident.
4. ' Both the applicants as well as learned counsel appearing for the complainant have produced 164 Cr.P.C. Statement of prosecution witnesses recorded on 26-2-2007 out of them two referred above had supported the case of applicant, whereas P.W . Azam Majeed and Muhammad Sajid had solely implicated this applicant. In view of contrary version of all the prosecution witnesses it is yet to determine that who is speaking truth which require further inquiry as apart from the other factors, element of interaction and previous event happened as disclosed by complainant of previous enmity in between him and accused Yaseen cannot be overlooked, when their statements were recorded after 21 days of the happening of incident. So far the ground raised by learned counsel for the applicant that learned Judicial Magistrate had no jurisdiction to issue process to applicant as he was shown in column No,2 of challan by Investigating Officer because the matter was exclusively triable by the Court of Session and it was only the Court of Session who can pass any order.
5. ' The arguments advanced by learned counsel does not appeal to reason as by virtue of section 190 Cr.P.C., the Magistrate of 1st Class or any other Magistrate specially empowered by Provincial Government to take cognizance of an offence after receiving complaint or report in writing by a police officer by virtue of subsection (1) of section 190 Cr.P.C. Is fully competent to look into the matter and if thereafter appears to him that the offence is triable by the Court of Session, then without recording any evidence he shall send the same to the Court of Session for trial.
6. ' The term "cognizance" as used in section means taking judicial notice of the matter placed before the Court and its judicial examination. So when once Magistrate is empowered to examine a matter, it is incumbent upon him to go through the papers and report submitted by the Investigating Officer and then either to B take cognizance of it or pass any judicial order which under the circumstances of the case after going through the material collected during investigation deemed just and proper. Section 190 Cr.P.C. Or any other section of the Code does not debar a JUdicial Magistrate to take cognizance of an offence before sending it to the Court of Session, hence the ground urged by learned counsel does not appear to be correct as it has also been observed in the case of Safdar Ali v. Zafar Iqbal reported in (2002 SCM R 63) which reads as under:- ' "It is well settled by now that the Magistrate can take cognizance of an offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents. There is no cavil to the proposition that the accused placed in column No,2 of challan cannot be summoned by the learned trial Court to face the trial and there is no legal bar whatsoever that at first instance the evidence should be recorded to ascertain as to whether the prima facie is made out against them. In this regard reference can be made to case titled Waqarul Haq v. State (1988 SCM R 1428). Malik Rabnawaz Noon learned Advocate Supreme Court could not mention any provision in Cr.P.C. In support of his contention that evidence should have been recorded prior to summoning the respondents whose names were admittedly placed in column No,2 of the challan. In this regard we are fortified by the dictum as laid down in case titled Falak Sher v. State (PLD 1967 SC 425) which has been followed in various judgments passed by this Court and relevant portion whereof is reproduced herein for ready reference:- ' 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 No,2, was clearly correct."
7. ' It has been further observed in the case of Qudrat Bibi v. Muhammad Iqbal . Reported in (2003 SCM R 68) as under:- ' "It would not be out of context to note there that when an accused is charged for capital offence it is not difficult to him to produce a good number of witnesses in his favour to show that he is not involved in the case. But this procedure is not akin either to any provision of Criminal Procedure Code or Police Rules, rather it reflects about the conduct of the Investigating Officer who instead of completing investigation within the stipulated period as prescribed under section 173(1), Cr.P.C. And submit interim or final challan had started justify with ulterior motives that the respondent is not involved in the commission of offence. Be that as it may, this Court in the case of Manzoor and 4 others v. The State (PLD 1972 SC 81) has held that ipse dixit opinion of the Investigating Officer cannot be accepted to exonerate the accused from the commission of the offence. Surprisingly learned High Court as well as Sessions Judge ignoring the law laid down in this reported case accepted the opinion of the Investigating Officer expressed by him in favour of respondent".
8. ' So far the delay of 6 hours in lodging the F.I.R. Is concerned, according to complainant at the first instance he had taken his injured son to hospital after arranging private vehicle and after his death he came to lodge the report. So in the situation when the condition of a deceased at the time of incident was so serious it was but natural for a father to give priority to provide medical aid to his son instead of taking steps for lodging F.I.R. So in that attempt the delay of 6 hours occurred cannot be attributed as negative in against to the complainant.
9. ' So far the factual aspects are concerned as observed above, all the four prosecution witnesses in their 164 Cr.P.C. Statement have given different version. One set has implicated the applicant whereas other two have exonerated him. Thus in view of the material contradictions in 164, Cr.P.C.
10. Statement of prosecution witnesses who have not yet been put to the test of cross-examination, it is a case of further inquiry as even at the stage of disposal of application for grant of bail deeper appreciation of evidence is not required. The applicant is allowed to be enlarged on bail subject to furnishing surety in the sum C of Rs,7,00,000 and PR bond in the like amount to the satisfaction of trial Court.