The circumstances hearing on this application in revision under section 435/439, Criminal Procedure Code are as below.
2. On 20th of February, 1976 case for the offences of murder, attempted murder and rioting under sections 302/307/148/149, P. P. C, was registered at Police Station Jaranwala District Faisalabad at the instance of Ali Asghar petitioner herein. The report alleges that five persons namely, Mohammad Afzal, Shah Mohammad, Mahmood-ul--Hassan, Liaqat Hussain and Khushhal Khan respondent formed themselves into an unlawful assembly and fired at the complainant side as a result of which Subedar Mohammad Inayat, Ali Asghar petitioner and Khalid Nawaz P. W. Were injured. Khushhal Khan respondent was ascribed a specific role in the commission of the offence.
He had allegedly fired at the petitioner with the gun in his hand causing him several injuries in the forehead and face. The doctor who had examined the complainant opined that the injuries were caused by fire-arm and were simple in nature. A few pellets were also extracted from underneath the injury in the forehead (injury No. 3). Subedar Mohammad Inayat died instantaneously. During initial investigation held by local police all the five accused named in the report were held guilty.
On a represen--tation made by the accused, the investigation was reopened and entrusted to Crimes Branch Lahore, Khawaja Mohammad Tufail Superintendent Crimes Branch Lahore found Khushhal Khan respondent innocent. Final report under section 173 was submitted to the Illaqa Magistrate. Khushhal Khan was placed as suspect in column No. 2 of Challan. On 14th of June, 1976 Ali Asghar petitioner filed a complaint before learned Sessions Judge, Faisalabad implicating all the five accused who were named in the First Information Report. Evidently, the complaint was filed to have set at naught by means of a judicial order the opinion of the Investigating Officer holding Khushal Khan respondent innocent in the case so that he should also be put to trial with the remaining accused in the case. The complaint was entrusted to Mr. Afzal Sohail, learned Additional Sessions Judge for disposal which was returned by him to learned Sessions Judge by means of order dated 28th of June, 1976 for disposal of objections raised by the accused-respondent that Court of Session was incompetent in law to entertain the complaint, which was neither correct nor proper. Learned Additional Sessions Judge should have himself determined the question of his competency to proceed with the complaint filed directly in the Court of Session. By this order dated 16th of July, 1976 learned Sessions Judge returned the complaint to the petitioner for presentation to Court of competent jurisdiction. Accordingly, the complaint was filed next day in the Court of Magistrate 1 Class, Jaranwala. Learned Magistrate proceeded to hold preliminary inquiry which was concluded on 26th of July, 1976 and the file was submitted to the learned Sessions Judge. The latter issued notice to the accused, vide order dated 24th of August, 1976 which did not indicate specifically if Khushhal Khan respondent was also included in the accused to whom notice was ordered to be issued. The order runs as below "The complaint has been sent by the Illaqa Magistrate.
Notice to the accused for 8th of September, 1976."
Subsequently, the complaint was made over to Mr. Afzal Sohail Additional Sessions Judge who had already been entrusted challan case on 30th November, 1.976. Learned Additional Sessions Judge ordered that the file be sent back to the learned Magistrate for his opinion if prima facie case was made out against the respondent pausing, it may be stated here that Khushhal Khan respondent was meanwhile discharged by the learned Magistrate on 18th of November, 1976. The latter reported on 21st of December, 1976 that he was not in a position to give a con--crete opinion whether or not a prima facie case was made out against the accused. Precisely, learned Magistrate reported as below : "In view of the above discussion and facts, I am not in a position to give any prima facie observation due to the lack of sufficiency of evidence and other circumstances which the complainant omitted to produce. The term ---prima facie--- is a relative phrase which does not involve only the statements of two P. Ws. Distracted from surrounding circumstances of the case".
The learned Additional Sessions Judge was not satisfied with the above report and the file was again sent back to learned Magistrate, vide order dated 18th January, 1977 with the direction that he should state categori--cally if evidence on the record would justify issue of process against the respondent. Learned Magistrate reported on 12th of February, 1977 that the complainant had failed to establish a prima facie case against Raja Khushhal Khan respondent who had already been discharged by him on a request by the Police. Learned Additional Sessions Judge declined to summon the respondent holding the view that issue of process to the respondent at this stage would be tantamount to expression of opinion on the complicity or otherwise of the respondent in the offence who although named in the First Information Report had been discharged on a report by the Police under section 173, Cr. P. C. The respondent had been cited as an accused (suspect) in column No. 2 of challan. The question if a case by which he meant to say a "prima facie" case was made out against the respondent will be considered after evidence is examined. Learned Additional Sessions Judge expressed himself more explicitly in the last line of penultimate para of the impugned order that "Anyhow, subsequently if at any stage of the proceedings, the Court is satisfied that a case is made out against Khushal Khan respondent, necessary order would be passed at the relevant time." The complaint was ordered to be filed, but a rider was added that this order shall not affect the rights of the petitioner in the challan case which was being fixed for trial. It will be shown from the above resume of proceedings in the case that the following questions fall for decision in the instant application :-st
(1) Was learned Magistrate competant in law to proceed with the complaint and examine preliminary evidence.
(2) Was it lawful or proper for learned Additional Sessions Judge to solicit opinion of learned Magistrate whether or not a prima facie case was made out against Khushhal Khan respon--dent.
(3) Was learned Magistrate competent in law for order of discharge of Khushal Khan respondent from the case, and finally.
(4) If order of learned Additional Sessions Judge filing the complaint without proceedings is lawful.
3. Decision of the above points turns on proper comprehension of a few provisions in the Code of Criminal Procedure to be noticed presently, which does not present much difficulty. Magistrates are empowered under section 190, Criminal Procedure Code to take cogni--zance of offences. Under subsection (3) of section 190, Criminal Proce--dure Code, a Magistrate taking cognizance of an offence triable before a Court of Session is required to send the case to the Court of Session for trial without recording any evidence. Section 193, Criminal Procedure Code bars cognizance of any offence by a Court of Session as a Court of original jurisdiction unless the case has been sent to it under section 190 (3), Criminal Procedure Code. It will, therefore, be shown that learned Sessions Judge had rightly ordered return of complaint to the petitioner for presentation to the Court of learned Magistrate, First Class, Jaranwala. However, learned Magistrate was not compe--tent to proceed with the case, examine the complaint and launch upon a preliminary inquiry under section 202, Criminal Procedure Code. The complaint should have been sent by the learned Magistrate to Court of Sessions without recording any evidence. Learned Additional Sessions Judge to whom the complaint sent by the learned Magistrate had already been entrusted by learned Sessions Judge, was competent to take cognizance of the offence alleged in the complaint and examine the complaint for a preliminary statement under section 200, Cr. P. C. He could issue process to Khushhal Khan respondent who was named C as suspect in column No. 2 of challan or he should have proceeded to hold a preliminary inquiry or entrusted the inquiry to a Magistrate, etc. The Magistrate to whom preliminary inquiry is entrusted should merely submit the record of proceedings to the Court of Sessions. It was neither lawful nor proper for learned Additional Sessions Judge to have asked for opinion of learned Magistrate if a prima facie case was made out against the respondent. Proceedings held by learned Magis--trate in the complaint filed with him on 17th July, 1976 are, therefore, a complete nullity in law. The report received from him that the complai--nant had failed to establish a prima facie case against the respondent which was culmination of proceedings in the preliminary inquiry before learned Magistrate which as said above were without jurisdiction, was equally a nullity and inconsequential in law.
4. Under subsection (3) of section 190, Cr. P. C. Magistrate taking cognizance of the offence triable exclusively by a Court of Session is required to send the case to the said Court without recording any evidence. Learned counsel for the petitioner was of the view that the Magistrate was incompetent in law to entertain a report by the police for discharge of the respondent whose guilt or innocence could be determined by Court of Session alone. The case of such accused should also be referred to Court of Session for necessary orders. Learned counsel for the respondent maintained forcefully that taking cognizance of offence is not a process of mere routine. The Magistrate could dispose of application for discharge of the accused one way or the other whom the police had declared innocent or the purpose of investigation of cases by an independent agency as well as the purpose of taking cognizance of the offence by the Magistrate in the first instance will be rendered meaningless. Expression ---taking cognizance of offence--- has not been defined in the Code. In its broad and literal sense it means taking notice of an offence and would include intention of initiating the judicial proceedings against the offender in respect of that offence or taking steps, whether there is any basis for initiating judicial proceedings or for other purposes. It is conscious application of the mind by the Court to the facts stated in the report by the Police which amounts to taking cognizance of the offence. On these premises it was urged that ex facie, power to take cognizance of offence under section 190 (3), Criminal Procedure Code would include the power to consider and dispose of the application by the police under section 173, Cr. P. C. For discharge of the accused whom they have found innocent. The order of discharge of the respondent in case by the learned Magis--trate was not in any way exceptionable in law. A different view was taken in Sultan Mohammad and others v. Khawaja Mohammad Tufail (PLD 1975 Lah. 1371). It was observed in para 7 of the judgment that his (Magistrate) taking cognizance is merely for the purpose of sending the case to the Court of Session and not for the purpose of making any enquiry which might either result in an order of commitment or discharge. He has no such options. Therefore, the cognizance by him on account of change in law, is of a different type".
However, in view of a peculiar circum--stance to be noted presently it will not be necessary to labour any further on the competency or otherwise of Magistrate to pass final order on the report of the police for discharge of the accused in case triable before Court of Session. As stated from the bar challan submitted by the Police wherein respondent was mentioned as suspect was sent by learned Magistrate to Court of Session without having passed any order for discharge or otherwise of the respondent although asked for specifically in the report under section 173, Criminal Procedure Code. Subsequently, the police applied formally before learned Additional Sessions Judge for orders for discharge of the respondent. As stated by learned counsel for the respondent, the application was with the consent of counsel for both sides sent down to learned Magistrate for disposal. Learned Magistrate had become functus officio after he had sent the case to the Court of Session. He has, therefore, lost all jurisdiction in the case. He had no jurisdiction to dispose of applica--tion by the police for discharge of the respondent. Jurisdiction which did not vest in the learned Magistrate could not be conferred on him by consent of the patties. Learned Additional Sessions Judge could have disposed of the application for discharge of the accused Khushhal Khan from the case with an appropriate order under section 265-K Criminal Procedure Code. The order of discharge of the responden^ passed by the learned Magistrate was, therefore, without jurisdic--tion.
As said above, learned Additional Sessions Judge should have recorded preliminary statement of the complainant for a decision whether process should be issued to the respondent or issuance of process should e be postponed for a preliminary inquiry into the allegations made against the respondent in the complaint. The order filing the complaint without --prejudice to the rights of the parties to contest the matter during hearing of the challan case is not warranted by any provision of law. Learned Additional Sessions Judge should take up the complaint for necessary proceedings in accordance with law. In case process is issued to Khushhal Khan respondent, challan case and the complaint case can proceed simultaneously.