FAHIM AHMED SIDDIQUI, J.---The petitioner has come up before this Court challenging the order dated 14.07.2017 passed by the learned Judicial Magistrate-III, Sanghar on a report furnished by the police under section 173 of the Code of Criminal Procedure (hereinafter Cr.P.C.), whereby he has issued NBW against the petitioner .
Prior to passing the above order , the Magistrate has already sent-up to Sessions Court, an interim report under section 173, Cr .P.C.
2. Squeal to the police, through FIR No. 35/2017 under sections 302, 324, 337-H(2), 147, 148 indicates that the petitioner and his other fellows attacked upon the complainant party on dispute over water rotation/share. On the fateful day, the complainant and his other associates were available at watercourse, when accused party also approached there who were armed with lethal weapons. After approaching at the place of incident, they defied the complainant party in respect to filing a Civil Suit. Meanwhile, accused Deedar Ali Sargani (Petitioner) fired upon the deceased farmer Parwez alias Paryal, while accused Abdul Khalique having gun fired upon the brother of complainant, which hit him on his leg. The remaining accused also started firing in air and thereafter they all decamped from the scene of offence. The injured were shifted to hospital, where Parwez alias Paryal succumbed to injuries.
3. The police has submitted interim challan by letting off the petitioner whose name was placed in Column-2 in blue ink inspite of the fact that specific allegation of the murder of the deceased Parwez alias Paryal was levelled against him. The learned Magistrate has sent-up the said challan to Sessions Court without passing Speaking Order of taking cognizance by only mentioning 'accepted'. Subsequently , another challan (Final Report) was submitted, on which the learned Magist rate has passed a well-reasoned order of cognizance and joined the petitioner as one of the principal accused.
4. The learned counsel for the petitioner argued at length. The gist of his argum ents is that in the instant case, cognizance has already been taken on an interim report (interim charge-sheet), wherein the petitioner was shown in Column-2 after letting off the petitioner , a final report (charge-sheet), which is similar in nature but the learned Magistrate has taken cognizance again by associating the petitioner as one of the accused. The investigation can be done several times but cognizance can only be taken once. After taking cogniza nce, the proper course would be to send the case to the Sessions Judge and the trial Court, after recording mater ial witnesses, may associate an accused of Column-2. He relies upon the case of 'Allah Wadhayo v. The State and 16 others' reported in 2013 YLR 54 and the case of 'Zulfiqar Ali and others v . The State' of Lahore High Court in W rit Petition No.8 of 1992.
5. Briefly , the arguments of the learned counsel for the respondent No.3 are that the learned Magistrate has rightly taken cognizance on the second final report. The previously charge-sheet was interim, which was only sent-up without application of mind. Ipse dixit of police is not binding, and learned Magistrate has taken cognizance after going through the entire material availab le with him. He relies upon the cases of Safdar Ali v. Zafar Iqbal and others' [2002 SCMR 63], 'Abdul Malik and 3 others v. The State' [2014 YLR 660] and 'Pakistan Institute of Labour Education and Research and another v. Province of Sindh through Chief Secretary , Karachi and 4 others ' [2017 YLR Note 343].
6. The learned Assistant Prosecutor General submits that the specific role is assigned to the petitioner , and his name is placed in Column-2 in an obligin g manner during investigation. According to her, the accused, who has been assigned the main role, cannot be placed in Column-2 and not only Magistrate but the trial Court can associate him as the main accused.
7. We have heard the arguments and perused the relevant record and also pondered over the citations placed before us. The word cognizance has not been defined under the statute that what action taken by a Magistrate is actually a 'COGNIZANCE' of any offence. In our view, taking cognizance by a Magistrate does not involve any formal action or indeed an action of any kind but it occurs as soon as Magistrate applies his mind to the suspected commission of an offence and involvement of any known or unknown person in the same. Cognizance can only be taken if some mallum prohabitum is caused by a person or group of persons.
8. Before proceeding further , we may have a look at section 190 of Cr.P.C. This section is captioned "Cognizance of offences by Magistrates". This section so far as it is material for our purpose, provides:- "All Magistrates of the First Class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court, 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 which he may try or send to the Court of Session for trial and (2)...........
9. It is well settled that the ipse dixit of police is not binding for a Magistrate, as such, he is not bound to accept a negative report of police and can take cognizance if the facts alleged by the complainant, as well as other material disclose the commission of an offence. It is clear from the use of the words "may take cognizance" in section 190, Cr.P.C, in the context in which they occur cannot be equated with must act on the police report as gospel truth. In fact, the word "may" give discretion to the Magistrate in the matter and even after application of judicious mind, he can refuse to take cognizance but in every report of police, if he intends to disagree with the opinion of police, he has to write reasons 'for the same.
10. From the scheme of Cr.P.C, the content and heading; of section 190, Cr.P.C. and the caption of Chapter XIV under which this section appears, it is clear that a criminal case can only be instituted when the 'cognizance' of the offence is taken by a Judicial Magistrate. Now question arises: What is meant by phrase 'taking cognizance of an offence' appearing in section 190 of Cr.P.C.? The procedure of taking cognizance is described in clauses (a), (b) and (c) of section 190 of Cr.P.C. but the word 'cognizance' has not been defined in Cr.P.C. The cognizance of an offence depends upon the circumstances of the case and mode in which it is sought to be instituted and the preliminary action, if any, taken by the Magistrate. Meaning thereby that after receiving a complaint, report by police or information communicated by any person, it is necessary for a Magistrate to apply his mind judiciously before taking any action. In this respect reliance, may be taken from a case reported as 'Bahadur and another v. The State' (PLD 1985 SC 62). We are of the view that if the Magist rate has not applied his mind, then it is not amounting to take cognizance of an of fence.
11. A Magistrate is not a post office but he has to look into the entire material place d before him and he is also not required to act hastily but it is necessar y for him to apply his mind judiciously in a criminal case, before taking cognizance. At the time of cognizance, he may form an opinion whether it is triable by him or required to commit to Sessions Court if. it is triable by the Sessions Court. In this respect reliance may be taken from a case of Honourable Supreme Court reported as 'Mehar Khan v. Yaqub Khan and another' (1981 SCMR 267), wherein it is held as:- "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 to 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 344(1), Cr .P.C."
It is worth mentioning that this Court has already described the duty of a Magistrate at the time of taking cognizance in a case reported as Ghulam Sarwar v . The State (2008 YLR 704 ), wherein it held as: "In view of the afore-cited decision of the Honourable Supreme Court, it would be seen that the Magistrate while exercising jurisdiction under section 190 of the Cr.P.C. does so in an administrative capacity and does not function in a judicial one since he is only to apply his mind to the material presents before him and thereafter decide whether he should take cognizance or not, if he decides to do so in a case triable by him then he should pass a speaking order after a fair assessment of such materials and then proceed to try the case himself, if he accepts the police report or otherwise discharge the accused where he does not agree with the same. Similarly , be should send the case to the Sessions Court if it is a Sessions case upon acceptance of the police report and again discharging the accused if he does not agree with the same."
12. There is no cavil about it that the Magistrate is fully competent to agree or disagree with a negative report. In case of a positive report, wherein the police have submitted a report against the accused person for the commission of offence in a Sessions trial, then a Magistrate may accept such a report and send up the same to the Sessions Judge after taking cognizance. However , in case of a negative report, it is necessary for the Magistrate to record his reasons in a few lines for agreeing or disagreeing with such a report. We have observed that a tendency is growing day by day that the Magistra te usually forward a positive report without expressing that he is taking cognizance of the offence and a case is required to be registered against the accused persons, and they usually write 'accepted and sent up to Sessions Court', which is not proper as it has not disclosed that he had gone through the entire material and after applying his judicial mind passing the order and such practice is not appreciable. Nevertheless, in case of a positive report, an order of accepting the final report and sending the case for trial to Sessions Court may be considered sufficient but in case of a negative report, it is necessary for a Magistrate that his orders should indicate that he has examined the entire material and then came to a conclusion about cancellation of case or taking cognizance.
13. At this juncture, we would like to point out that there are two sorts of negative reports submitted by the police after investigation i.e. negative report in respect of offence and negative report in respect of offenders. In first type of negative reports, the police have opined that no offence has taken place and the case is either required to be cancelled on the ground that the FIR is maliciously false (usually known as a report in B-class) or the same is required to be cancelled being false due to some mistake of fact or law or the matter is purely of civil nature (usually known as a report in C-class). There is another sort of negative report wherein the happening of the incident i.e. commission of the offence is not denied but nominated accused are let off by placing their names in Column-2 in blue ink. Meaning thereby that in the second type of negative report, the opinion of police is that the offence is not taken place as described by the complainant in his FIR.
14. It is important to note that as per provision of section 23 of the Police Act, it is one of the duties of the Police Officers to detect and bring offenders to justice', and for any reason, the Police Officer remains failed to discharge such duty and placed an improper negative report before the supervising Magistrate, then the Magistrate has to act according to law by applying his judicial mind and take cognizance of such an offence. It is pertinent to mention here that in both sort of negative report, it is necessary for a Magistrate to give reason for agreeing or disagreeing with the same and if no reason is given by the Magistrate then it is not amounting to examine the material judiciously , as such, it is also not amounting to take cognizance.
15. In the present case, we are of the view that the action taken by the learned Judicial Magistrate at the time of filing interim challan, wherein he has just mentioned 'Accepted', is certainly not amounting to take cognizance as he has not passed any order in respect of the negative report regarding the offender, whose name was placed in column-2 in blue ink. Sending up of a criminal case triable by the Sessions Court without taking cognizance is nothing but nullity . The proper cognizance was taken by the learned Magistrate at the time of furnishing complete and final challan, wherein he has opined that the accused was mentioned in Colum n-2, who was assigned the main role in a murder case, is actually a reasoned order passed by him on a negative report of police, as such, the cognizance was actually taken by the learned Magistrate when he has passed a well-reasoned order on a final report submitted by the police.
16. In the end, it would be appropriate to point out that the learned Magistrate has already passed an order , and the petitioner is not remediless and if the petitioner considers that he has been falsely involved and he has some concrete evidence in this respect, even after associating his name as the one of the culprits, the proper course is available to him by filing an application before the trial Court for his pre-mature acquittal under section 265-K, Cr.P.C. We are of the view that when appropriate remedy is available with the petitioner , it would not be proper to approach this Court under the constitutional jurisdiction. In this respect, we take reliance from a case of apex Court reported as 'Noor-Muhammad v. Sarwar Khan and 2 others (PLD 1985 Supreme Court 131), wherein it is held as:- "We may observe that there is an increa sing tendency to file Constitutional petitions even when the Court whose orders are challenged had the jurisdiction to pass those orders, notwithstanding the fact that it has been held time and again that where a Court (in contradistinction to a persona designata, has jurisdiction to decide a matter , it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it 'without lawful authority' and certainly not illegal."
17. The upshot of the above discussion is that the instant petition filed by the petiti oner is not meritorious, as such, the same was dismissed. However , the NBW issued by the learned Magistrate against the petitioner seems to be harsh, as such, the same is converted to bailable warrant in the sum of Rs.50,000 .00 [Rupees fifty thousand only] to be furnished before the trial Court. In this respect, the trial Court is empowere d to pass any appropriate order after hearing the parties. These are the reasons for our short order dated 06.12.2018.