ASLAM RIAZ HUSSAIN, J.-This petition by Mehar Khan is directed against the Order dated 26th May, 1979, of a learned Single Judge of the Lahore High Court whereby bail was granted to Yaqub Khan, respondent.
2.Yaqub Khan, respondent, is accused, along with three others namely Ghafoor Khan, Amir Abdullah and Esab Khan, of an offence under sec--tion 302/34, P. P. C., for the murder of Muhammad lqbal. The F. I. R. Of the incident was lodged by Mehar Khan (petitioner herein) Yaqub Khan applied for bail to the learned Additional Sessions Judge, Mianwali, who rejected his application vide Order dated 21-1-1979. Yaqub Khan then moved the Lahore High Court for bail vide Cr. Misc. No. 751/B/1979. The learned counsel did not press the bail application on merits but submit--ted before the High Court, at the very outset that he had applied for bail only on a question of law. He submitted that Yaqub Khan, respondent, was arrested on 12-12-1978 and was produced before the Ilaqa Magistrate within 24 hours, who remanded him to Police custody till 19- 12-1978. There--after, till the filing of the bail application on 1-3-1979, the learned Magistrate remanded him to judicial custody by various orders under section 344, Cr. P. C., passed from time to time.
3. The counsel for Yaqub Khan urged two points before the High Court. His first contention was that since neither a complete nor an incomplete Report under section 173, Cr. P. C. (i.e., challan) had been submitted before the learned Magistrate, he cannot be said to have taken cognizance of the case under' subsection (1) of section 190, Cr. P. C. For the purpose of sub--section (3) of the said section, and as such he was not competent to pass an order of remand under section 344 (1), Cr. P.
C.
4. The second contention raised by the learned counsel was that since --the case, in question, was triable exclusively by the Court of Session, there fore, in view of the language of section 344, Cr. P. C.
Only that Court (i.e. The Court of Session) could postpone the commencement of, or adjourn, the trial of a case under that section specially because after the commitment proceedings have been done away with, the Magistrate cannot hold an 'inquiry' for the purpose of committing the case to the Court of Session. He submitted further that since no order of remand under section 344, Cr. P. C.
Had been passed by a Court competent to try the case (i.e. a Court of Session) the detention of Yaqub Khan, respondent, was illegal and he was, therefore, entitled to the grant of bail.
The learned High Court Judge dealt only with the last mentioned con--tention and held that since inquiries for commitment by Magistrates have been dispensed with, only a Court competent to try the case, in question; namely, Court of Session, could pass an order of remand under section 344, Cr. P. C., and because in the present case order of remand has been passed by a Magistrate, the petitioner's detention in judicial custody was not legal. He, therefore, granted him bail.
5. The learned counsel for Mehar Khan, complainant/petitioner has challenged the aforementioned order, contending that the conclusion arrived at by the learned High Court is not based upon correct interpretation of the relevant provisions of law i.e. Subsections (1) and (3) of section 190, Cr.
P. C., and section 344, Cr. P. C. He submitted further that the Magistrate could pass an order of remand under section 344, Cr. P. C. Even without taking cognizance of a case.
6. The question involved in the resent petition relates mainly to the correct interpretation of section 344 (1), Cr. P. C. The contention raised by the petitioner's counsel is of considerable importance in view of the fact that the Criminal Procedure Code has been recently amended by the Law Reforms Ordinance, 1972 (Ordinance No. XII of 1972), whereby Chapter XVIII of the Code relating to commitment proceedings has been altogether omitted and for that reason certain other provisions, including sections 190(3) and 193(1) of the Cr. P. C. Had also to be suitably amended, but no corresponding amendment has been made in section 344, Cr. P. C. Therefore in order to arrive at a correct interpretation of section 344(1), Cr. P. C., as also to under--stand the contentions of the petitioner's counsel in relation thereto, the provisions of the said section shall have to be construed in that background.
7. Subsection (1) of section 190, Cr. P. C., which relates to "Conditions requisite for taking cognizance of offences by Magistrates" provides that a Magistrate can 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.
If the offence is one triable by a Magistrate then in case the takes cognizance of a case under clause (a) or (c) he would proceed to make a preliminary enquire into the matter, and if a prima facie case is made out, he could try the case. If he takes cognizance on a Police report under clause (b) then, if the investigation has been completed and he does not adjourn the case under section 344, Cr. P. C., he can proceed to try it. If, however, the case was one triable exclusively by a Court of Session then prior to the Law Reforms Ordinance, 1972 he would start commitment pro-- ceedings' under Chapter XVIII of the Cr. P. C. And then, if there was sufficient evidence for that purpose, he would commit the case to the Court of Session under subsection (3) of section 190, Cr.
P. C.
Before the amendment made by the Law Reforms Ordinance, that section read as follows-- "Section 190(2).--The Provincial Government may empower any Magis--trate of the first or second class to take cognizance under subsec--tion (1), clause (c) of offences for which he may try or commit for trial."
Even after the amendment made by the Law Reforms Ordinance, 1972 the procedure with regard to cases triable by a Magistrate the position remained the same. But with regard to cases triable exclusively by a Court of Session the provisions of subsection (3) of section 190 were amended to read as follows :- "Section 190(3).-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."
A corresponding amendment has also been made in subsection (1) of section 193, Cr. P. C., which relates to the commencement of proceedings in a Court of Session. Prior to the amendment, this subsection read as follows :- "Section 193(I).--Except as otherwise expressly provided by this Code or by any other law, for the time being is force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf."
After the amendment by the Law Reforms Ordinance, 1972 the same provision reads as follows "Section 193(1).-Except as otherwise expressly provided by this. Code N 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, sub section (3)."
8. It would be noted that the substance of the change introduced by these amendments is that in section 190(1), Cr. P. C., the word 'commit' has been substituted by the word 'send' and the underlined portion of the sub--section (1) of section 193, as it existed before the amending Ordinance, has been substituted by the underlined' portion of the amended subsection (1) of section 193, Cr. P. C.
The reason for these amendments is evident. As already observed in the preceding paragraph, before the above-noted amendments, whenever a Magistrate took cognizance of an offence under clause (a), (b) or (c) of sub--section ()) of section 190, Cr. P. C., which was ex facie triable exclusively by a Court of Session, he would start an 'inquiry' under Chapter XVIII and record evidence in order to determine whether or not it was a fit case for being committed for trial to the Court of Session, and if the case was com--mitted to it, the Court of Session was empowered to take cognizance thereof under section 193(1) of Cr. P. C. But now when the commitment proceedings have been done away with by the Law Reforms Ordinance, 1972, a Magis--trate is required only to 'send' the case to the Court of Session for trial without recording any evidence.
9. A reading of subsection (3) of section 190, Cr. P. C., in the light of above-noted facts would, however, show that-
(i) before he can 'send' a case for trial to the Court of Session, a Magistrate must, first, have taken cognizance of a case, under any tone of the three clauses to subsection (1) of section 190, Cr. P. C, In other words, he must either have received a private complaint under clause (a), or a Police report under section 173, Cr. P. C., as envisaged in clause (b), or he should be acting on any information received by him, as mentioned in clause (c). It is, therefore, evident that he cannot act under subsection (3) without having received a private complaint or a Police report (i.e. a challan either complete or incomplete) or some information from any other source, and
(ii) that although now a Magistrate is not required to hold an inquiry under Chapter XVIII,but that does not mean that he is to act merelyas a post office and automatically 'send' the case for trial to a Court of Session simply because a section relating to an offence exclusive triable by a Court of Session has been mentioned by the Police or the complainant (as the case may be) in the challan or the private complaint. He is, in fact, required on having taken cognizance of such a matter to enquire into the case and to apply his mind to whatever material is placed before him, by the Police or the complainant, if in order to determine whether the allegations made in the Police report, private complaint or information received by him, make out a prima facie case triable exclusively by a Court of Session.
10. In the changed circumstances, after the commitment prose have been dispensed with by the Law Reforms Ordinance, this inquiring that the relevant material and application of mind thereto by a Magistrate, t determine the nature of offence i.e. To determine as to whether or not the case is one triable, exclusively by the Court of Session, would now constitute an `inquiry' within the meaning of the word as defined in clause (k) of section 4, Cr. P. C. And used in S. 344(1), Cr. P. C.
11. Difficulty has arisen in the interpretation of S. 344(1); Cr. P. C. Because, unfortunately, it has not been suitably amended by the Law Reforms Ordinance and its wording remains the same as before the omission of Chapter XVIII. To understand this, the wording of that section has to be studied with care. The section is reproduced below for facility of reference: "S. 344.-(1) If, from the absence of a witness, or any Other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order, in writing, stating the reasons there for from time to time, postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable, and may, by a warrant remand the accused if iii custody provided that no Magistrate shall remand an accused person to custody, under this section for a term exceeding fifteen days at a time.
(2) Every order made under this section by a Court other than a High Court, shall be in writing, signed by the Presiding Judge or Court, shall be in writing, signed by Magistrate.
Explanation.------------------------------------------------------------------------------- -- "It is evident from a reading, of subsection (2) above, that power of remand under subsection (1) of this section has been conferred on Magistrates as well as the Presiding Judges of other Courts e.g. Courts of the Session. It is, how--ever, noteworthy that section 344 (1) provides that the power of remand is to be exercised only if for any reason it becomes necessary or advisable for the Magistrate or the Presiding Judge--
(a) to postpone the commencement of-
(i) any inquiry, or
(ii) trial.
Or
(b) to adjourn--
(i) any inquiry, or
(ii) trial.
12. The confusion in the interpretation of this provision seems to have arisen from the fact that as already mentioned 'inquiries' for the purpose of commitment under Chapter XVIII of the Code have been dispensed commitment under the Law Reforms Ordinance. Which, in turn, necessitated with by the amendment of some related provisions of the Code i.e. Subsection (3), section 190 and subsection (1) of section 193. Although sec--tion 344, Cr. P. C., itself has not been amended but the changes made by the Law Reforms Ordinance in other provisions have now, of necessity, to be taken in account while interpreting section 344 (1), Cr. P. C., in the present context.
No doubt the elementary rule of construction is that the words used in a Statute should be construed literally but according to what is termed as the 'Golden Rule of Interpretation' by Maxwell, the ordinary meaning of a word need not be adhered to if a construction based on it, would be at variance with the intention of the Legislature as collected from the Statute itself or I it leads to an absurdity. In such cases the language may be varied or modi--fied so as to avoid such absurdity or inconvenience Beek v. Smith ((1836)2MW191). While interpreting the statutes like the one before us, the proper mode of interpretation or discovering the true intention of the Legislature would be to consider as to what was the state of law before the statute or its provision was given its present form and as to what was the mischief or difficulty which was sought to be suppressed and remedy which the Legislature had intended to advance. Ref - Abdul Majid Khan v. Chief Settlement and Rehabilitation Commissioner (PLD1968SC154); Divisional Superintendent, P. W. R. v. Bashir Ahmad (PLD 1973 SC 589) and Rabnawaz v. Jahana (PLD 1974 SC 210) and Maxwell on the Interpretation of Statutes, 12th Edn. At p. 40.
We feel that the above-noted Rule of interpretation is, applicable with full force to the present case and while interpreting the provision of section 344 (1), Cr. P. C., the earlier state of the law has to be kept in mind and the wording of the related provisions, i.e. Section 190 (3) and 193 (1), Cr. P. C., as they stood before their amendment by the Law Reforms a Ordinance, 1972 would provide a strong indication of the change intended to be brought about by the amendments of those provisions and the effect thereof on the true meaning of the word "inquiry" used in section 344 (1), Cr. P. C.
13. As already mentioned earlier a Magistrate could take cognizance of some cases for trying the same. He could also take cognizance of cases triable exclusively by a Court of Session but only for the limited purpose of committing them to that Court for trial. As such for that purpose he had to hold an inquiry under Chapter XVIII of the Code which were commonly known as Commitment Proceedings. As such it could under section 344, Cr. P. C., "postpone the commencement of" or "adjourn" the trial of cases which he was empowered to try. It could also "postpone" or "adjourn" an inquiry which was required to hold finder Chapter XVIII. But now that the inquiry, for the purpose of commitment, under Chapter XVIII, has been dis--pensed with it has been found difficulty to visualise as to how a Magistrate could postpone, commence or adjourn. An 'inquiry' which he is no longer em--powered to hold. Similarly it cannot be visualized how a Magistrate can post--pone the commencement or adjourn a 'trial' which he is not empowered by law to conduct, i.e. The trial of a case which is a triable only by a Court of Session.
14. 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 t 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 a44 (1), Cr. P. C.
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 fro time to time till he finally 'sends' the case for trial to the Court of Session.
15. For the same reason a Court of Session to which a case has not yet been sent by a Magistrate under section 190 (3) andwhich has, therefore, not yet taken cognizance thereof under section 190(1) cannot obviously commence the trial of that case. Evidently, therefore, it cannot postpone or adjourn the trial and, consequently, would not be competent to pass an order of remand under section 344 (1), Cr. P. C.
16. As a result of the above interpretation of section 344 (1), Cr. P. C. We hold that the learned High Court Judge has erred in granting bail to the respondent on the ground that the Magistrate seized of the case in question for the purpose of exercising jurisdiction under subsection (3) of section 190, Cr. P. C , is not empowered to pass an order of remand under section 344(1), Cr. P. C.
17. It may be observed here that while taking the contrary view the learned High Court Judge has relied on Shad! Khan v. M. Salim (PLD 1978SC38). The observations in that case, however, do not apply to the present case because in the cited case the only question before this Court was as to whether or not under section 344, Cr. P. C., the Sessions Judge, seized of a case for the purpose of its trial, could postpone the commencement of or adjourn the trial sine die.
18. In view of the above discussion we convert the petition into an appeal, accept the same and set aside the order of bail granted to the respon--dent by the High Court vide the impugned Order.
19. Before concluding this Order we may mention that a challan has now admittedly been filed after the bail application was decided by the High Court and hence it cannot be contended that the Magistrate is not properly seized of the matter and has not taken 'cognizance' within the meaning of the word as used in subsection (3) of section 190, Cr. P. C., but it may be observe that in a case in which neither complete nor an incomplete challan (as envisaged by rule 25'26 of the Police Rules, 1934), has been submitted before a Magistrate, he cannot be assumed to have taken cognizance of the ca under clause (b) of section 190 (1), Cr. P. C., just as he would not be assumed to have taken cognizance of a case under clause (a) of section 190(1), Cr. P. C. When no private complaint has been lodged before him. The result would be that in such cases the Magistrates would not have the power to remand the accused to custody under section 344 (1) of the Criminal Procedure Code.