1. This is an application under section 561-A, Cr. P. C. Read with sections 435 and 439, Cr. P. C. To quash the proceedings pending against the applicant in the Court of the Additional City Magistrate, Karachi.
2. On 10th April 1969 Sultan Chowkidar of Abdul Kadir lodged a report at the police station that the to unknown persons at the instigation of the applicant had beaten him and stabbed him with a knife., This incident was witnessed by Qutubul Islam and Azizullah. On the basis of this report investigation was resumed. The statements of witnesses were recorded. The applicant had pleaded during 'the Police investigation that at the the of the alleged incident he was present in his factory at Garden West. To support this plea he produced a few witnesses whose statements were recorded by the police. On the basis of the material available, before the Police a report was sent to the Additional City Magistrate, Karachi, stating the facts and the substance of the evidence of various witnesses.
3. In the conclusion it was stated as under : "It has been proved from the statement of the witnesses that the accused Abdul Rehman was not present at the spot. In these circumstances, as per order of the S. P., East Division, the release report under section 169, Cr. P. .C. Is sent herewith for approval. It is requested that the order for the release of accused Abdul Rehman under section 169,.Cr. P. C. May be passed."
4. On this report the learned Magistrate passed the following order.
5. "Released under section 169; Cr. P. C. Announced."
6. However, subsequently a challan under section 173, Cr. P. C. Was sent on 8-5-69. Under the main heading of "the names and addresses of the accused persons who have been challaned", in column No. 4 "on bail or P.'R.", to names were shown, one was the name of one Mohammad Khan son of Haji Khan while the other was the name of the applicant. A. Note was also made against the name of the applicant to the effect Released under section 169; Cr. P. C. By S. D. M., Civil Lines."
7. Subsequently the complainant made an application dated 23rd August 1969 stating that he had lodged the report against the applicant that at his instigation. Injuries had been caused to him and during the investigation the Police had arrested the applicant and his Chowkidar Mohammad Khan who was later released on bail by the Police. Further, on 3-8-69 the Police had presented the challan and in pursuance of that challan he was summoned to appear and give evidence 'but it was a surprise to him to learn that only Mohammad Khan Chowkidar had been summoned while the applicant had been discharged under section 169,' Cr. P. C. It was further stated that the evidence of the witnesses clearly disclosed sufficient substantive evidence against the applicant for committing an offence under section 324, P. P. C. And the name of the applicant vas also mentioned in the first report, charge-sheet and 161 statements of the witnesses. It was further pleaded by him that the Court had power to issue process against the applicant and prayer was made for the issuance of warrant of arrest under section 204, Cr. P. C. : against the applicant for having committed an offence under sections 324, 109 and 114, P. P. C. And on his appearance before the Court he should be ,joined as an accused along with Mohammad Khan under section 351, Cr: P.
8. C. On any other order that may be seemed fit be passed.
9. On this application the opinion of the Prosecuting Sub---Inspector was sought by the learned Magistrate and he gave an opinion that although the applicant was released by the Police, under section 169, Cr. P. C. But the Court was not bound by the charge-sheet. It was further stated in this report that there was the testimony of to eye-witnesses against the applicant and his Chowkidar Mohammad Khan. This report is dated 29-9-69. On this report the learned Magistrate passed the following order "Perused the application and the comments of the P. S. I. Also heard the learned Advocate for the complainant. The accused Abdul Rehman appears to be accomplice in the present cast along with co-accused Mohammad Khan. Issue summons for the appearance of accused Abdul Rehman."
10. It is against this order that the present revision application had been filed. In order to appreciate the propriety of the impugned order I would like to refer to section 169, Cr. P. C. Which reads as under "If, upon an investigation under this Chapter, it appears to the Officer in charge of the police station or to the police officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the for-- warding of the accused to a "Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a Police report and to try the accused or commit him for trial."
11. It is clear-from the bare perusal of the section that it was not necessary for the Police to have made the report to the Magistrate under this section as was done in the present case. The Police has the power to release a person in custody on his execut--ing a bond with or without sureties for his appearance before a Magistrate if and when so required. Thus, this section in terms applies only to the case of an accused who has never been forwarded to Magistrate and is confined to the stage of investiga--tion by the police. Consequently, the reference by the police to the Magistrate was unnecessary. Equally no such order under section 169, Cr. P. C. Could be passed by the Magistrate.
12. The order purported to have been passed under section 169, Cr. P. C. Could only be passed under subsection (3) to section 173, Cr. P. C. On the -receipt of the report from the Police under section 173, Cr. P. C. As is apparent from the subsection which reads as under:- "Whenever it appears, from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit."
13. This subsection provides to alternatives, either to discharge the bond or pass any other, order. The competency of the Magistrate to pass any other order will necessarily include the power to summon the accused person to stand his trial although the Police holds the view that there is no evidence against him or the evidence is wholly incredible. It, therefore, follows that the Magistrate is not bound by the Police report. In this connec--tion, reference may be made to the case of Mohammad Nawaz v. Crown (48 Cr. L J 774). The relevant observation reads as under:- "On a proper, construction of subsection (3) of section 173, its provisions appear to relate exclusively to the cases provided for in section 169, i.e., where the Police Officer has released an accused person on his own bond with or without sureties, to appear, if required by the Magistrate, and has reported that there is no sufficient evidence or reasonable suspicion against him. No provision however, other than that contained in section 173(3) is made in the Code for Magisterial proceedings following upon a case reported by a Police Officer under, section 173 in which he holds the opinion specified in sec--tion 169, and has released the accused person on his bond, to appear if and when required by a Magistrate. The Magistrate is not bound by the Police Officer's opinion, and relying on the material furnished in the report, the Magistrate may, if he chooses, take cognizance of a case against the person whom the Police Officer believed to be innocent or against other persons, who may appear to the Magistrate on the basis of the report, to be guilty of an offence."
14. The learned counsel for the applicant also conceded that the Magistrate had no power to pass an order under section 169, Cr. P. C. After making this concession he urged that Police purported to have been under section 169, Cr. P. C. Was in fact a report under section 173, Cr. P. C. And the order passed by the learned Magistrate was an order under section 173(3), Cr. P. C. It was further urged by him that treating the order under sec--tion 173(3), Cr: P. C. It amounted to the discharge of the applicant and, therefore, the Magistrate was not competent to summon the applicant in order to face the trial. While agreeing with the first contention that the previous steps taken by the Police and the Magistrate could be treated to have been taken under section 173, Cr. P. C., I cannot agree with regard to the incompetency of the Magistrate to proceed against the applicant. Admittedly no final challan was presented. The report of the Police could be said to be an interim report which resulted in the discharge of the bond. The final report was submitted later and the applicant was shown as one of accused persons in column No. 4 who had been sent up for trial. The applicant was shown released under section 169, Cr. P. C. While the other accused was shown on bail. Thus the action taken by the Magistrate by passing the impugned order amounted to the taking of cognizance on police report finally submitted under section 173, Cr. P. C.
15. It has not been contended that after the submission of report under section 173, Cr. P. C. The police was not competent to hold further investigation and send up the accused who in the earlier E report was exonerated on the ground of incredibility or insufficiency of evidence. Nor I find any such limitation imposed on the powers of the police. Some what similar situation had arisen in the case of Ala Mohd. v. Inspector-General of Police, West Pakistan Lahore and others (PLD 1965 Lah. 734). In that case a report was submit--ted by the Police and the learned Magistrate purport to at under section 169, Cr. P. C. Passed an order discharging some persons on the basis of the aforesaid police report when the matter was being further investigated by the Police. A writ petition was filed against the discharge order. Their Lordships observed that the order purporting to be under section 169, Cr. P. C. Was obviously a mistake for section 173(3), Cr. P. C. And held that there was no bar to the investigation by the Police after submission of final report under section 173, Cr. P. C. Nor was the police incompetent to file, if it was so disposed, a second. Report as a result of its subsequent investigation into case. The pertinent, observation made in this behalf reads as under: "There is no statutory prohibition in the Code of Criminal Procedure for the police not to embark on a fresh investigation of the case after the conclusion of the first and the submission of the final report whatever the defects in the first investigation or the flaws in the final report given in the wake of it, that might subsequently be detected. The first investigation may be utterly unsatisfactory for many reasons. It may be due to non-availability of the evidence, or the successful induction of false evidence during the investigation or the reason may be, the corrupt behaviour of the Police Officers concerned. To say that the same Police Officers or their superiors on receipt of further information or on the availability of better evidence cannot revive the investigation already done, leading to a contrary or a varied result, would virtually amount to putting a seal on human errors and fragilities once committed, whether by design or by inadvertence, with no opportunity to make amends, although it be possible to do so. The Police, as an agency of the State, should be as much interested as any other agency concerned in the administration of justice, to find out the truth in respect of a crime and slay the whole facts bare for determination by the competent tribunals as honestly and correctly as possible. The statutory functions of the police and the Courts in this respect are complementary to each other and do not overlap. The fact that the previous investigation had yielded certain results should not at as a hurdle or a deterrent for the police in reaching the truth if additional facts and additional circumstances brought to light help in its discovery. The Magistrate himself does not have the legal powers to direct a further investigation by the police after himself has taken cognizance of the case and has himself launched an inquiry or trial; but there is no bar for the police to pursue its own investigations and submit their results to the Court to find the guilt or innocence of the accused persons before it become to late."
16. Yet there is another hurdle which the learned counsel, unsuccessfully made efforts to overcome. As is clear from the statement of facts, the complainant finding that the, applicant was not summoned, made an application to the learned Magistrate which led to the passing of the impugned order. . This application could be treated to be a fresh complaint which was clearly maintainable. In order to meet this it was urged by the learned counsel that although the second complaint was competent but it was not desirable after the applicant had been discharged. To support this contention he referred to certain authorities but it is -unnecessary to deal with those authorities which are clearly distinguishable. In those cases the discharge order was passed on merits after recording the evidence but in the present case no r evidence was recorded by the learned Magistrate and the order was passed on the basis of the police report.
17. The order passed under section 173 (3), Cr. P. C. Is not a judicial order but an administrative order and it could be ignored C by the learned Magistrate while taking cognizance. This view finds support from the authority in the case of "Sardara and others v. Mohammad Nawaz and another (PLD 1949 Lah. 537). It was clearly laid down that the order which the Magistrate passed under section 173 was essentially an administrative order and not a judicial order and it did not amount either to discharge or acquittal of that accused. In the case an application was made to the Deputy Commissioner who forwarded the application to the Superintendent of Police and investigation was ordered which resulted in a challan under sections 302 and 364, P. P. C. Against three persons. But in the final report which the investigating officer sent to the Magistrate he recommended that the accused be discharged and accordingly the Magistrate discharged the accused. On the same day a direct complaint was filed under section 302/109, P. P. C. Against the same four persons who had been discharged and the S. D. M. Issued warrant of arrest under sections 364 and 201, P. P. C. Against all of them. Against this order the accused took a revision petition to the learned Sessions Judge who recommended for the quashment of the order of the Magistrate. The High Court rejected the reference holding that the order passed under section 173, was neither a discharge nor acquittal. Similarly in PLD 1965 Lah. 734, already referred, a complaint was also filed against the accused persons who had been discharged under section 173(3), Cr. P C.
18. And their Lordships expressed the view that the complaint was obviously competent as according to the preponderating legal view the previous is charge order in favour of those persons was merely in the nature of an administrative order and not a judicial order.
19. With regard to the institution of the proceedings on the complaint it was further urged by the learned counsel for the applicant, the learned Magistrate ought to have held preliminary inquiry before issuing the process in view of the earlier report of the Police and the order passed thereon which was purported to be under section 169, Cr. P. C. Though in fact it was an order under section 173(3), Cr. P. C. I see some force in this argument and it may be desirable to hold preliminary inquiry before an accused person is summoned but if the Magistrate decides against it .He has the discretion to do so and the proceedings' are not thereby vitiated, and furthermore the efficacy of the argument is lost in view of the fact that in the final report, the name of the applicant was mentioned in column No. 4 as one of the accused who had been challaned. Thus no illegality was committed nor it can be successfully pleaded that the discretion was improperly exercised.
20. Thus the learned Magistrate could be said to have been taken the cognizance either on Police report or on complaint or on both. From whatever angle it is looked at, there can be no manner of doubt that in no case the action-of the Magistrate in summing the applicant is open to any exception. In every case the same and the impugned order calls for no. The application is, therefore dismissed.