A case under sections 302, 307 read with sections 149 and 148 of the Pakistan Penal Code was registered at Kunjah Police Station, in Gujrat District, at the instance of one Muhammad Hussain on.
16th January 1969, at about 1-40 p.m. With regard to the murder of one Manzoor and infliction of injuries on the persons of Mst. Muhammad Bibi, Mst. Bashir Bibi and Mst. Nawab Bibi, by nine persons, namely, Walayat, (2) Nazeer, (3) Atta Muhammad, (4) Ghulam Rasool alias Manno, (5)
Kale Khan, (6) Ghulam Haider, (7) Muhammad Zafarullah, (8) Sikandar and (9) Muhammad Bashir.
2. The first five out of the afore-mentioned accused persons, namely, Walayat, Nazeer, Atta Muhammad, Ghulam Rasool alias Manno and Kale Khan, were admitted, to bail by my learned brother Mushtaq Hussain, J. On 15th July 1969, .In Criminal Miscellaneous Petition No. 3713 of 1969.
This order shall dispose of Criminal Miscellaneous Petition No. 7337 of 1969, preferred by Ghulani Haider, Criminal Miscellaneous Petition No. 7602 of 1969, filed by Muhammad Zafarullah and Sikandar and Criminal Miscellaneous Petition No. 657 of 1970, preferred by Muhammad Bashir for grant of bail.
3. After investigation, the police put in challan in Court on 2nd May 1969. The police investigation revealed, that Ghulam Haider and Muhammad Bashir petitioners were innocent and their names were shown in Column No. 2 of the challan. Muhammad Zafarullah and Sikandar applied to this Court, for grant of bail on 25th October 1969, bearing Criminal Miscellane--ous Petition No. 6417 of 1969. The application was heard by my learned brother Shaukat Ali, J. Earlier to that, the Inquiry Magistrate had been directed to submit his report, as to why, no progress bad been made in the case., After perusal of his report, my learned brother observed:- "The report which was sent for by this Court shows that the delay in the inquiry is due to the fact that, the prosecution witnesses did not turn up or no Magistrate was available to take charge of the case for a... Long the. The accused cannot be blamed for this delay.
4. Sheikh Akhtar Ali Monga, the Magistrate then seized of the case appeared in the Court of my learned brother on 25th H, November 1969, in connection with another case. He was directed with respect to the case in hand, to take it up "day to day and take all possible steps to complete, the inquiry within a period of one month. The Magistrate was also directed to take coercive measures, against the prosecution witnesses, if they avoided to appear. Although with these directions, the petition was dismis--sed, it was left open to the-accused to apply to this Court for bail; if the inquiry was not completed "within the prescribed period." It is abundantly clear, that the directions given by my learned brother, have not been complied with. The inquiry made by me yesterday through the office of the Advocate-General from the concerned Court reveals, that although there were, 18 prosecution witnesses in all, only 15 have been examined so far. Three witnesses have yet to be examined and it is most unfortunate, that they are all police officers. The next date of hearing in the case is 27th July 1970. God alone knows, as to whether, this case will come to an end on' that day, or shall linger on for another couple of months.
5. From the perusal of the copies of the orders passed by the learned Magistrate, which were shown to me by the, parties, I have gained an impression, that the prosecution is not in the least interested in closing its case at an' early date. Even the Magistrate then seized of the case, seems to have flouted the orders of this Court. After the order of my learned brother, that the case shall be taken up "day to day", it was fixed for 1st December 1969, and since then although nearly 6-- months have elapsed; the prosecution has yet three more witnesses to examine, and I lay stress on the words that they are police officers. They should have been the last persona to avoid appearing in Court. I also notice that hurdles were placed in the way of the Magistrate by the prosecu--tion itself preventing early disposal of the case. An application was flied by the complainant part for the summoning of the to accused, who had been shown in column No. 2 of the challan. They were summoned. The, defence- counsel for the remaining accused submitted before the Court that their case should be taken up separately, so that the disposal of the main case was not delayed.
This was not acceded to. On a large number of occasions when all the accused were present, the case was unnecessarily adjourned. It appears, that copies of the statement of the prosecution witnesses, made under section 161 of the Code of Criminal Procedure, were provided to the to accused shown in column No. 2 on 15th December 1969. However, when the case came up on 18th December 1969, it was adjourned not at the request of the accused, but at the instance of the complainant counsel that the case should be taken up after, the expiry of week of the delivery of the copies.
6. Another difficulty arose in which one of the accuse himself is to be blamed and he is Ghulam Haider. He informed the Court that be was entitled to have the case tried by another Court, as he had been summoned as an accused by the Magistrate though he was shown in column No. 2. This submission was made by him under a wrong impression and was very rightly opposed by the defence counsel for the remaining petitioners. Who requested the Court, that their clients had no objection, if their case was heard by him. In spite of this, the Magistrate sent the file to the District Magistrate for the transfer of the case to another Magistrate.
7. Sections 190 and 191 of the Code of Criminal Procedure, which are relevant for-the purposes of deciding, as to whether, the (earned Magistrate was right in sending the file to the District Magistrate for transfer to another Magistrate, may be usefully reproduced "190.--(I) Except as hereinafter provided, any District Magistrate or Sub-Divisional Magistrate, and any other Magis--trate specially empowered in this behalf, 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 than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.
(2) The Provincial Government, or the District Magistrate subject to the general or special orders of the Provincial Government, may empower, any Magistrate to take cognizance under subsection (1), clause (a) or clause (b), of offences for which he may try or commit for trial.
(3) The Provincial Government may empower any Magistrate of the First or Second Class to take cognizance under sub--section (1), clause (c) of offences for which lie may try or commit for trial.
191.--When a Magistrate takes cognizance of an offence under section (1), clause (c) of the preceding section, the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Court, and if the accused, or any of the accused, if there be more than one, objects to being tried by such Magistrate, the case shall, instead of being tried by such Magistrate, be committed to the Court of Session or transferred to another Magistrate."
A perusal of the aforementioned provisions of law, shows that there was no legal impediment in the way of the Magistrate passing an order for the summoning of certain persons as accused even though the police had not challaned them, and to proceed with the case himself. While doing so, he obviously acts under, clause (b) of subsection (1) of. Section 190 of the Code of Criminal Procedure. He was, therefore, not required to send the file to the District Magistrate for its transfer to any other Court under section 190 of the Code of Criminal Procedure because he did not take cognizance of the offence under subsection (1),I clause (c) of section 190 of the Code of Criminal Procedure.
8. This proposition of law has come under consideration a number of times. In the case of Mian Muhammad Akbar v. State(PLD 1967 Lah. 629) while dealing with the application of sections 190 and 191 of the Code of Criminal Procedure, Mr. Justice Bashiruddin Ahmad (now Chief Justice of Peshawar High Court), observed 'The preliminary enquiry is `Criminal Proceedings' being a 'step' in the trial of a person accused of an offence exclusively triable by the Court of Session but can, by no stretch of argu--ment be held to be a trial. Chapter XX of the Code deals with the trial of summons cases by Magistrate while the trial of warrant cases by Magistrate is provided in Chapter XXI of the Code. In cases exclusively triable by tae High Court or Court of Session (as the case may be), the trial actually begins after commitment in accordance with section 213 of the Code."
It was next observed :- "In a case relating to an offence exclusively triable by Court of Session, the application of section 191 of the Code is not attracted to the proceedings because it is provided in the section itself that in case the accused or any of the accused if there be more than one, objects to being tried by the Magistrate who has taken cognizance of an offence under clause (c) of sub--section (1) of section 190 of `he Code, he can either transfer the case to another Magistrate or commit it to Court of Session for trial."
It was further observed :-- "A case triable by a Magistrate must be transferred to another Magistrate if the accused objects to being tried by a particular Magistrate who has taken cognizance of an offence under clause (c) of section 190 (1) of the Code, but if the offence is triable by Court of Sessions, the section itself provides that such Magistrate should commit the case to Court of Session because in cases exclusively triable by Court of Session the Magistrate takes cognizance of offence for the limited purpose of committing for trial and as an accused person in such a case is not to be tried by the Magistrate, the provision in section 191 of the Code that the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Magistrate, do not come into play. The principle' underlying section 191 of the Code cannot be extended and made applicable to a preliminary enquiry preparatory to commitment because such an interpretation would amount to doing violence to the language of the section."
In the case of Muhammad Nawaz Khan v. Noor Muhammad arid others (PLD 1967 Lah. 176), my learned brother Sardar Muhammad Iqbal, J., observed :- "A Magistrate is not bound by the police officers' opinion expressed by him in his report under section 173 of the Criminal Procedure Code, 1898. On the contrary, the: Magistrate, by relying on the material furnished in the report, take cogniz--ance of a case against the person whom the police officer believed to be innocent. Where cognizance is taken by a Magistrate of a case on the basis of a negative report under section 173 of the Code, such cognizance is taken obviously on the police report and not upon his own knowledge or suspicion. Clause (b) of subsection (I) of section 190 of the Code, does not say `upon a report in writing of fact against the accused'. All that it states is that upon a report in writing of such facts made by any police officer. The basis for taking cognizance under the said section is not the report against the accused but on a report of facts as made by the police officer. The case, would, therefore fall under clause (b) and not clause (c) of sub--section (l) of section 190, Cr. P. C. Thus if a person is shown in column No. 2 of the challan and the investigating officer reports that there is no-sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate for trial, it is competent for the Magistrate to direct that the bond given by the accused be discharged. It would mean that the Magistrate on perusal of the report is satisfied that the report of the police was correct and considered that it was in the interest of justice that no further proceedings should be taken against the accused. The Magistrate, however, is under no obligation to at in accordance with the opinion of the police officer and he can on the material which is furnished in the report take cognizance of a case against the person whom the investigating officer believed to be innocent: or that there was not sufficient evidence to justify his trial. If he takes such an action before he records any evidence, he will be deemed to be acting on the police report within the meaning of clause (b) of subsection
(1) of section 190. He would, under the circumstan--ces, not be taking cognizance under clause (c) of subsection (I) of section 190 and that being so the accused cannot object to his being tried by such Magistrate."
9. In the case of Falak Sher and another v. State (PLD 1967 SC425), it was held that the Magistrate was not bound by the report submitted by the police under section 173. He may or may not agree with the inclusion reached by the investigating officer. There was nothing in section 190 to prevent him from taking cognizance of the case under clause (b) in spite of the police report. Thus the action in issuing summonses to an accused despite the fact that the investigating officer in his report under section 173, Code of Criminal Procedure, had placed their names in column No. 2 thereof, was correct.
10. The case decided by Mr. Justice Sardar Muhammad tribal referred to above, was taken to the Supreme Court by Noor Muhammad and others and is reported as 1969 P Cr. L J 567. Their Lordships of the Supreme Court, after going into the facts of the case took note of the fact, that the case decided by Mr. Justice Sardar Muhammad Iqbal, had been approved by the Supreme Court itself in the case of Falak Sher v. State, referred to above and also in the Petition for Special Leave to Appeal No. 66 of 1966 (Sardar Ali and others v. State). In view of this, the appeal preferred by Noor Muhammad and others was dismissed.
11. The result, therefore, is that the learned Inquiry Magistrate was not justified in sending the case to the District Magistrate for its transfer to another Magistrate and this has also unnecessarily prolonged the inquiry proceedings.
12. Sheikh Akhtar Ali Monga; the Magistrate who is now seized of the case, appears to have made another attempt to throw of his responsibility, as he transferred the case himself to Qazi Fakhar Ullah. The latter refused to entertain it and hence the file was returned by him.
13. From what has been stated above, it is abundantly clear, that the directions issued by this Court for early disposal of the inquiry against the accused, have been ignored. It appears that the prosecution itself is interested in prolonging. The agony of the petitioners and that is why, even the police officers have not come forward to make their statements. Taking these factors into consideration, I would allow all the three applications. Ghulam Haider petitioner was granted interim bail by 'my learned brother Shamim Hussain Kadri, J. The same is confirmed. The remaining petitioners shall be released on bail, provided they execute bail bonds in the sum of Rs. 15,000 (Rupees fifteen thousand) each, with one surety each, in the like amount to the satisfaction of the Inquiry Magistrate.
14. This order, however, shall not stand in the way of the committing Magistrate or the learned Sessions Judge, in case the accused are committed to the Court of Session to cancel their bail.