This is a petition under section 498, Cr. P. C. By Mian Safdar Khan, Mian Sardar Bakhsh, Sikandar Zulqarnain and Mian Sultan, petitioners, for bail in respect of a case instituted against them and some others under section 302/148/149/109/120-B, P. P. C. At Police Station, Khushab on 5-7-1978.
2. The brief facts of the case are that one Gul Zaman was murdered on the night between 4th and 5July, 1978, in Mohallah Awanpura, Khushab City and a report pertaining to the said murder was lodged at the Police Station Khushab by Rab Nawaz Khan, Director of Super Awan Bus Service, under section 302/148/149/109, P. P. C. Against Mian Safdar Khan, Mian Sardar Bakhsh, Sikandar Zulqarnain and Mian Sultan, the four petitioners, and five others, namely, Asghar Hayat, Hafiz Khan Muhammad, Mian Khuda Bakhsh, Zafar Ali and Muhammad Sharif. The petitioners and their co- accused moved the Court of Sessions at Sargodha for their admission to bail pending trial, but the learned Sessions Judge dismissed the application in regard to all the petitioners, vide his orders dated 21-10-1978. Thereafter, the four petitioners and their co-accused moved the High Court for admission to bail, vide Criminal Miscellaneous No. 4066/B-78, which application was dismissed by me on 25-11-1978, qua the present four petitioners. The five co-accused were, however, admitted to bail. Being aggrieved by my order dated 25-11-1978, the petitioners moved the Supreme Court of Pakistan for Special Leave to Appeal against the same, which petition was dismissed by the Honourable Supreme Court of Pakistan on 17-6-1979. Thereafter, Mian Sultan, petitioner No. 4, again moved an application in the High Court bearing No. Criminal Miscellaneous 276/B-80 for his admission to bail on health grounds. This petition was also dismissed by me on 9-2-1980.
3. The present four petitioners have now again moved an application for bail on the ground that though an incomplete challan was submitted in the Court of the Ilaqa Magistrate at Jauhar Abadth sometime in September, 1978, yet the same was not submitted to the Sessions Court under section 190(3) of the Code of Criminal Procedure and that no valid remand orders having been passed in the case by the Sessions Court under the provisions of section 344 of the Code, the detention of the petitioners was illegal.
4. The learned counsel for the petitioners, in support of his application, has submitted that the F. I. R.
In this case was lodged on 5-7-1978 and the four petitioners were arrested soon thereafter. An incomplete challan in this case was submitted in the Court of the Ilaqa Magistrate, Jauhar Abad, sometime in September, 1978, but the said Court did not send the case to the Sessions Court as required under subsection (3) of section 190 of the Criminal Procedure Code. Since the submission of the incomplete challan the petitioners were rarely produced by the police in the Court of the Resident Magistrate at Shah Pur for getting adjournments and consequential remands under section 344, Cr. P. C., notwithstanding the fact that the powers under the said section could only be exercised by the trial Court, which in a case of murder, was only the Sessions Court. It was, therefore, submitted that all the orders of remand under section 344, Cr. P. C. Were illegal and as the detention of the petitioners was based on illegal orders, they were entitled to the concession of bail. In this connection, reliance was placed on Yaqub Khan v. The State (P J 1979 Cr. C. (Lah.) 378).
It was further submitted that various agencies of the police had investigated the case, who had found a large number of the accused named in the F. I. R. As innocent and that the complainant party in order to keep the petitioners in detention, constantly moved for the re-investigation of the case, so that the final challan could not be submitted. In these circumstances, it was suggested that the failure of the investigating agency to submit the complete challan against the petitioners was itself indicative of the fact that the investigating agency was itself not convinced about the guilt of the petitioners and that, therefore, for the purposes of bail, the petitioners deserved the benefit arising out of the inordinate delay in the submission of the complete challan in the trial Court. In the light of these cumulative facts, it was submitted that the petitioners be admitted to bail.
5. The learned counsel for the complainant, who strongly opposed the petition, submitted that the trial Magistrate was not bound under sub--section (3) of section 190 of the Criminal Procedure Code to mechanically send every case filed before him to the Sessions Court without first examining the incomplete challan filed and finding out whether the investigation was complete, that a prima facie case was made out against the accused and, if so, against which of them and whether the case was exclusively triable by the Sessions. It was submitted that since the investigation was still going on and it was yet to be determined which of the petitioners and their co-accused were guilty, it was submitted that the learned Ilaqa Magistrate had yet to decide against which of the accused he bad to send up the case to the Sessions. In these circumstances, it was submitted that the orders of remand passed by the Ilaqa Magistrate were, therefore, competent. Reliance in this connection was placed on Muhammad Aslam and 2 others v. Mst.
Natho Bibi (PLD 1977 Lah. 535), Muhammad Hanif and another v. The State (1979 P Cr. L J 1078) and Shadi Khan v. Muhammad Saleem and 3 others (PLD 1978 SC 38).
6. I have given my anxious consideration to this case, The file of the case shows that on 21-9-1978 an incomplete challan against the present petitioners and their co-accused was filed in the Court of the Ilaqa Magistrate, Jauhar Abad, he being the competent Magistrate under section 177 of the Criminal Procedure Code to receive the police challan. On 9-10-1978 the said learned Magistrate passed the following order:- "Today the police have filed the incomplete challan. The accused should be sent for from the Jail so that the case be sent to the Sessions."
It cannot, therefore, be denied that the learned Ilaqa Magistrate, on the basis of the said incomplete challan, was satisfied that a prima facie case under section 302/148/149/109/120-B, P. P.
C. Stood made out against the petitioners and their co-accused, that the said case was exclusively triable by the Court of Session and that the same should, therefore, be sent to the Sessions Court.
After 9-10-1978, no orders (whether of remand or otherwise) appear on the file of the Ilaqa Magistrate, Jauhar Abad, till 10-12-1979, and even those that appear after 10-12-1979 do not relate to the remand of the petitioners or their co-accused but a direction to the Prosecution Branch to file the complete challan as early as possible. At this stage, it may be mentioned that just when the incomplete challan was filed in October, 1978, in the Court of the Ilaqa Magistrate, Jauhar Abad, the petitioners had moved a written application before the District Magistrate, Sargodha, stating that since they apprehended danger at the hands of their opponents whilst being transported from Shah Pur Jail to the Court of the Ilaqa Magistrate at Jauhar Abad, they requested that they be produced before any criminal Court at Shah Pur till the complete challan was filed against them before the Ilaqa Magistrate at Jauhar Abad. Accordingly, the District Magistrate, Sargodha, vide his Letter No. 760 dated 11-10-1978, addressed to the Superintendent, District Jail, Shah Pur, with copies endorsed to the Ilaqa Magistrate, Jauhar Abad, and the Resident Magistrate at Shah Pur, ordered that the accused should be produced in the Court of the Resident Magistrate, Shah Pur, for securing farzi dates till the complete challan of the case was filed in the Court of Ilaqa Magistrate at Jauhar Abad. Due to this letter, it appears that the petitioners were not produced before the Ilaqa Magistrate, Jauhar Abad, on and after 11-10-1978 nor was the incomplete challan submitted to the Sessions Court in view of the direction of the learned District Magistrate that till the complete challan was filed, the accused should not be summoned. Strangely the petitioners were not even produced before the Resident Magistrate, Shahpur, to secure farzi dates under section 344, Cr. P. C.
What was done was that a Jail Robkar was produced of and on before the Resident Magistrate, Shahpur, by the Jail Authorities for the Magistrates endorsement and the petitioners were detained in jail on the authority thereof. The reference to farzi dates was construed as `farzi peshi" and the petitioners were never produced before the Resident Magistrate. It appears that the whole of the procedure adopted after the last order of the Ilaqa Magistrate, Jauharabad, dated 9-10-1978 was illegal and open to serious challenge. If it be assumed that the Ilaqa Magistrate, Jauharabad, after a proper investigation of the incomplete challan and all the papers submitted therewith, was satisfied that the cases was complete for transmission to the Sessions Court, which appears to be the case when one reads his order dated 9-10-1978, then the petitioners should have been produced before the Sessions Court for proper orders under section 344, Cr. P. C. For their detention pending the postponement of the commencement of their trial. If it be assumed that the order of the learned Ilaqa Magistrate, Jauharabad, stood superseded by the order of the District Magistrate, Sargodha, and the Ilaqa Magistrate, was prevented from sending the case to the Court of Session till the complete challan was received, then too the petitioners should have been produced before the Resident Magistrate, Shahpur, for proper orders under section 344, Cr. P. C., for their detention pending the adjournment of their inquiry. In either case, there has been a total failure of compliance of the law.
7. I agree with the contentions of Mian Mahmood Ali, Barrister-at---law, that a Magistrate receiving a case exclusively triable by a Sessions Court does not blindly and mechanically have to transmit whatever papers he has received to the Sessions Court, without first checking and making sure that the police investigation is over, that the case is exclusively triable by the Sessions, that a prima facie case is made out against such of the persons whose names find mention in the challan and that the challan has been filed in the proper form and all papers and documents, including the police diaries, are complete and fit for transmission. A Magistrate is not debarred from sending a case to the Sessions Judge on an incomplete challan, if he considers that an investigation has already been held and the result of any further investigation is not likely to immediately displace the stand taken by the Prosecution Branch. However, a Magistrate taking cognizance of a case exclusively tri4ble by a Sessions Curt, does not take cognizance of the same under subsection (1) of section 190 of the Code of Criminal Procedure for the purpose of trial, but fur the purposes of "sending the case to the Court of Sessions for trial". In taking cognizance of the case for this limited purpose, he has a right to undertake an inquiry into various matters, such as, to make sure whether the public investigation is over and if not, what is its effect, whether the case is exclusively triable by a Sessions Court, whether a prima facie case appears against such of the persons whose names find mention in the challan and whether the challan and other paper and documents are complete and fit in all respects for transmission. Where this limited inquiry takes some time, for example, in cases where the Magistrate has decided to wait for the complete challan to be filed by the police after a pending re-investigation is over, the learned Magistrate has Power under section 344, Cr. P. C. To adjourn the inquiry and remand the accused persons to custody for such periods as be may consider fit. The word "inquiry in section 344, Cr. P. C. Is not limited to inquiries under various sections of the Code of Criminal Procedure where the word "inquiry" appears. It covers all cases proceeding a trial where facts have to be determined for the purposes of taking some action thereon. Before the 1972 amendment, in warrant cases, the proceedings were "inquiries" up to the time when the charge was drawn up. The limited inquiry, therefore, conducted by a Magistrate with a view to sending the case to the Sessions Court, falls within the definition of "inquiry" covered by clause (k) of sub--section (1) of section 4 of the Criminal Procedure Code. The Magistrate can, therefore, remand the accused to custody under section 344, Cr. P. C. When adjourning the inquiry, till he ultimately sends the case to the Sessions.
8. In view of what has been stated in pare 6 above, the detention of the petitioners since October, 1978, has been illegal. It is stated on behalf of the State that the complete challan is being filed soon, perhaps within ten/fifteen days, but this has been the repeated story for quite some time and five investigations have already taken place. Presently the petitioners are entitled to bail. All the petitioners are, therefore, admitted to bail in the sum of Rupees One Lac (Rs. 1,00,000) each with two sureties each in the like amount to the satisfaction of the Ilaqa Magistrate, Jauharabad.
9. In future the Resident Magistrate, Shahpur, will not give any farzi dates to the petitioners, relating to their detention. The Ilaqa Magistrate, Jauharabad, shall deal with this case from .Now onwards till such time as the case is sent to the Sessions Court. If the petitioners so desire, they need not physically be produced in Court, but their counsel may be permitted to appear when the application for is presented under section 344, Cr. P. C.