M.S.H. QURAISHI, J.--The main controversy in this petition for leave to appeal from the order of the High Court, dated 17-1-1984 dismissing the petitioners' Criminal Misc. No. 101-Q of 1982, relates to the powers and duties of the Magistrate taking cognizance of an offence triable exclusively by the Court of Session.
2. The case arises out of F.I.R. No. 361, dated 10-9-1975 of Sheikhupura City P.S., under section 302/34, read with section 109, P.P.C., in which it had been alleged that Nazir had, at the Lalkara of Shehbaz and Khushi Muhammad, fired at and killed Gharib Alam deceased with a .12 bore pistol, that Nazir was apprehended at the spot while Shehbaz and Khushi Muhammad managed to make good their escape in a jeep driven by Muhammad Shafique (petitioner No. 2) and that the murder was the result of collusion and conspiracy with Raja Khushbakhtur Rehman (petitioner No. 1) and the said Muhammad Shafique. In the challan in the case, which was submitted on 2-2-1976, both the petitioners and Khushi Muhammad were shown in column No. 2 as in the result of the police investigation they were found to have been falsely involved on account of long-standing enmity.
The investigation, however, revealed the complicity of another accused, i.e., Manzoor Ahmad, who had not been cited in the F.I.R. And accordingly his name alongwith that of Nazir and Shehbaz was placed in column No. 3.
3. Not satified with the result of the police investigation, Qutab Hussain (complainant) filed a complaint which was, on 20-7-1976, entrusted to a Magistrate for inquiry and report under section 202, Cr.P.C. And according to the report so submitted there was no credible evidence against the petitioners and a prima facie case was found only against Nazir, Shehbaz and Khushi Muhammad.
4. It may be mentioned that the challan was directly presented before the Sessions Judge, who entrusted it to the Additional Sessions Judge. But the irregularity having been detected, the challan was returned on 23-9-1978 through the Sessions Judge to the Ilaqa Magistrate who sent the case on 25-9-1978 to the Court of Sessions by the following order.
On receipt of the case in his Court, the Additional Sessions Judge, on 3-10-1978, summoned not only the three accused shown in column No. 3 but also the petitioners and Khushi Muhammad, who all had been placed in column No. 2. The petitioners challenged the order before the Lahore High Court through Criminal Miscellaneous No. 992-M of 1978 which ultimately came up before a Division Bench on 14-3-1982, but, in view of the pronouncement by that Court in Muhammad Haneef's case 1979 P.Cr.L.J. 1078, was not pressed by the petitioners' counsel who confined his submission to the point that the trial Court could not proceed with the challan in the face of the private complaint filed by the complainant. The Division Bench, thereupon, adjourned the matter to 13-4-1982 in order to enable the trial Court to take a decision in the light of Nur Elahi v. The State PLD 1966 SC 708. In the meantime, at the request of the complainant, the trial Court permitted him to withdrew the complaint and dismissed the same by order dated 7-4-1982. The petitioners, thereupon, withdraw Criminal Miscellaneous No. 992-M of 1982 and filed Criminal Miscellaneous No. 101-Q of 1982 seeking quashment of the proceedings qua them.
5. The contentions of the petitioners before the High Court were that the Magistrate had sent the case to the Court of Session in a mechanical manner without applying his mind, that the trial Court was not competent to issue process to the petitioners who had been placed in column No. 2 of the challan and that the dismissal of the private complaint as withdrawn was unwarranted. None of the contentions, however, prevailed, with the result that the petition was dismissed by the impugned order, and as the case had been pending for more than eight years, the High Court directed the trial Court to dispose of the case within three months.
6. Before us, to, learned counsel for the petitioner reiterated the contentions that application of mind being a prerequisite of taking cognizance, the Magistrate, who had acted mechanically and without application of mind in sending the case to the Court of Session, could not be said to have legally taken cognizance of the case. In this connection, he urged that the case against the petitioners, who had been found innocent by the police could not have been sent alongwith that of the other accused without express reasons. The arguments addressed by learned counsel in fact showed that he laboured under the impression that cognizance is to be taken of an offender, but that is not the law. Under section 190(3), Cr. P. C. The Magistrate takes cognizance of an offence and not of an offender. He takes cognizance of the case as a whole and not qua only some of the accused found by the police to be implicated in the case. Cognizance can be taken even if the offenders be unknown. On taking cognizance of the offence the Court acquires jurisdiction over all the persons involved and not only over persons against whom the challan is submitted. The word "cognizance" is a term of at implying application of mind to the facts of a case in order to determine whether the facts disclosed constituted an offence triable. Application of mind for the purpose of cognizance under section 190(1) and (3) read with section 193, Cr.P.C., is for the purpose of determining whether the facts disclosed the commission of an offence triable exclusively by the Court of Session, in which case the Magistrate is bound to send the case to the Court of Session for trial. This legal position stands already explained by this Court in Mehar Khan v. Yaqub Khan 1981 SCMR 267 in the words: "...Even under the recently substituted subsection (3) of section 190, Cr. P. C., 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."
Once the Magistrate has taken cognizance of the offence exclusively triable by the Court of Session, he has to send the case of that Court and it is not open for him to send the case only qua those of the accused who are placed in column No. 3 of the challan. The order of the Magistrate shows that the challan had been before him when he ordered the sending of the case to the Court of Session. The contention that he had not applied his mind to the facts of the case is thus devoid of merit.
7. As regards the power of the trial Court to summon the petitioners who had been placed in column No. 2 learned counsel does not deny that the trial Court is possessed of such power. He contends that the trial Court had not taken proper note of the fact that the petitioners had been found guilty neither by the police nor by the Ilaqa Magistrate to whom the case had been referred under section 202, Cr. P. C. The learned Judge in his order, dated 3-10-1978 has given reasons for summoning the petitioners. He had perused the record before him. His order summoning the petitioners thus suffers from no legal infirmity. It is to be noted that the petitioners had dropped their objection to the issue of process against them by withdrawing their Criminal Miscellaneous No. 992-M of 1982.
8. Learned counsel for the petitioners has also assailed the dismissal of the complaint, on the ground that there was no provision of law enabling the trial Judge to permit the withdrawal of a complaint in a murder case. In this connection he submitted that had the complaint not been dismissed, the complaint case could have been tried first in view of Nur Elahi v. The State PLD 1966 SC 708. Nur Elahi's case, however, does not lay down any invariable rule that the complaint case is always to be tried first. Where the version and the accused are practically the same in both the complaint and the challan cases, even a separate trial many not be necessary. The point had come up for consideration in Zulfikar Ali Bhutto v. State PLD 1979 SC 38 where it had been held: "Therefore, there was no necessity for a separate trial of the to cases when, technically speaking there were neither to sets of accused nor different versions nor any additional evidence to be examined by the complainant. It was only to avoid prejudice to the complainant that a particular procedure was devised in the reported case of Nur Elahi, but to say that invariably it should be followed even if the facts are distinguishable is not correct, as it does not amount to a declaration of law.
Since in the present case both the petitioners had been named as accused also in the complaint, no prejudice can be said to have been) caused to the petitioners by the withdrawal of the same.
9. The petition has no force and is accordingly dismissed.