1. This revision application under section 439 read with section 561-A , Cr.P.C. Is filed by the petitioner against the notice issued by the IIIrd Additional Sessions Judge, Sukkur, directing the applicant to appear before him on 28-10-1985. The circumstances leading to the issuance of impugned notice to the petitioner may be stated as follows.
2. While hearing Bail Application No. 491 of 1985 of Jiand son of Saindad Khoso in Crime No.31 of 1985 under section 302, P.P.C. I noticed that in the F.I.R. Registered in the case both Jiand and the present petitioner were assigned equal role in the offence and as such there was prima facie no justification for the investigating agency to put the name of petitioner in column 2 of the challan which was submitted only against accused Jiand. In order to ascertain if there was any other material available with the police to justify their action to place the name of petitioner in column No.2 of challan issue notices to S.S.P. Sukkur, S.D.P.O., Sukkur and the Investigating Officer to appear in Court to explain the circumstances under which the name of petitioner was placed in column 2 of challan. After hearing the S.S.P., S.D.P.O. And Investigating Officer personally and going through the record produced by them, I was not satisfied with the action of Prosecution agency, in showing the name of petitioner in column 'No.2 of challan accordingly while dismissing the bail application of Jiand I had observed that the learned trial Court should examine. The case of petitioner and take action according to law against him. In these circumstances, the learned IIIrd Additional Sessions Judge, issued the impugned notice to petitioner calling upon him to appear before 'him on 28-10- 1985. The learned trial Court while issuing notice to petitioner, has, however, mentioned that the bail application of petitioner was rejected by this Court which is not 'correct as there was no occasion for rejection of bail application of petitioner who was never arrested by the police in the case.
3. Nevertheless, the direction in the impugned notice to the petitioner is only to appear before the Court on the date fixed by it end the question which requires examination in the case' is whether the learned Additional Sessions Judge was competent to issue such notice to the petitioner.
4. The learned counsel for the petitioner contends that under section 190, Cr.P.C. The only authority competent to take cognizance of a criminal offence is a Magistrate and not the Court of Sessions and therefore no process could be issued to the petitioner by the Additional Judge, Sukkur, in the case. After hearing the learned counsel for the petitioner I am unable to accept the contention.
5. Section 190 relied, by the learned counsel for the petitioner reads as follows:- "190.Cognizance of offences by Magistrate.-- (1) Except as hereinafter provided, any District Magistrate or Sub-Divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence:- (a)upon receiving a complaint of facts which constitute such offence; (b)upon 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.
6. (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 send to the Court of Session for trial.
7. (3)A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Sessions shall, without recording any evidence, send the case to Court of Session for trial."
8. No doubt under section 190, Cr.P.C. The initial cognizance of a criminal case is to re taken ,by the Court of a Magistrate but the learned counsel for the petitioner completely overlooked the provision of 193 Cr.P.C. Which enabled the Court of Session also to exercise all powers of an original criminal Court in respect of cases which are sent to it by the Magistrate in accordance .With the provision of section 190(3), Cr.P.C. It will be useful to reproduce here the provision of section 193, Cr.P.C. Which reads as follows:- "193.Cognizance of offences by Courts of Sessions.-- (1) Except as otherwise expressly provided by the code or by any other law for time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190, subsection (3).
9. (2)Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Provincial Government by general or special order may direct them to try or as the Sessions Judge of the division, by general or special order, may make over to them for trial."
10. Subsection (3) of section 190 (ibid) makes it obligatory on a, Magistrate taking cognizance under subsection (1) to forward a case if it is exclusively triable by Court of Sessions, without recording any evidence. It is not disputed before me that the case registered against and petitioner falls under the category of these cases which are triable exclusively by a Court of Sessions. It is also not disputed that the case is presently pending before the Court of Sessions to which the case was sent by the Magistrate concerned under section 190(3), The learned counsel for the petitioner, however, contended that although a case on being forwarded to the Court of Sessions under section 190(3), Cr.P.C. Could be dealt with by that Court as a Court of Original Criminal Jurisdiction but this power is not comparable with the power of a Magistrate possessed under section 190(1)
11. (b), Cr. P.C. And as such he could not issue process to a person against whom the initial cognizance was not taken by the Magistrate, According to learned counsel, the learned Additional Sessions Judge could only, exercise powers of Original Court in respect of such accused against whom cognizance was taken by the Magistrate but could not exercise these powers against an accused in respect of whom the Magistrate while sending the case under section 190(3), Cr.P.C.
12. Had not taken the cognizance. It is accordingly contended that as the Magistrate sending the case to the Court of Sessions under, section 190(3), Cr.P.C. Had not issued powers to the petitioner the learned Additional Sessions Judge could not take cognizance against him. To support his contention the learned counsel cited the cases of Muhammad Akbar v. The State 1972 SCMR 335, Muhammad Aslam v. Mst. Natho Bibi PLD 1977 Lah. 535. In the first cited case the following observations were made by the Court with regard to the powers of a Magistrate under section 190(1)(b), Cr.P.C:-- "Even on the first report alleged to have been submitted under section 173, Cr.P.C., the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cognizance if upon the materials before him he found that a prima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance. Or not in accordance with the provisions of section 190(1)(b) of the Code of Criminal Procedure. This view finds support from decision of this Court in the case of Falk Sher v. State."
13. A reading of the above passage will make it clear that irrespective of opinion of investigating Officer to the contrary, the Magistrate under section 190(1)(b), Cr.P.C. On the basis of first report submitted to him under section 173 Cr.P.C. And the material before it could take cognizance against a person though not treated as an accused by the police if he is satisfied that a prima facie case is disclosed against him. This power available to Magistrate in my view, is equally exercisable by a Court of Sessions by virtue of section 193, Cr.P.C. In respect of case which is sent to him under section 190(3), Cr.P.C. As. I have not been able to find any indication to the contrary in the abovequoted passage. Similarly the observations in the second cited case of Mohammad Aslam v.
14. Mst Natho Bibi with regard to the powers of Court of Sessions after Law Reform Ordinance are as follows:-- '"The only deviation made from the earlier section 193t-Cr.P.C. Is that instead of "unless the accused has committed to it by the Magistrate duly empowered in that behalf" the words substituted are "unless the case has been sent to it under section 190, subsection (3)". The reading of these amended sections makes one thing absolutely clear that power of the Magistrate to take cognizance of an offence whether triable by him or triable exclusively by a Court of Cessions remains intact. Under the Law Reforms Ordinance what hag been laid down is that the Magistrate will no more, enter into the exercise of recording preliminary evidence in case which are exclusively triable by the Court of Sessions but will only send them as provided under section 190(3), Cr.P.C. For trial to the Sessions Court. There could be no two opinions about this legal position. Therefore, the Court of Session will be barred to take cognizance of any offence directly as a Court of original jurisdiction unless the same had been sent to it under the relevant section 190(3). Cr.P.C."
15. There is nothing in the abovequoted passage to support the contention of the learned counsel for the petitioner that the powers available to a Magistrate as a original criminal Court under section 190, Cr.P.C. Is not available to a Court of Sessions even in cases which are sent to it by a Magistrate under section 190(3), Cr.P.C. In the present case it is not disputed before me that the challan of the case is now before the Court of Sessions having been sent to that Court under section 190(3), Cr.P.C. By the Magistrate concerned. In these circumstances no exception could be taken to the cognizance taken by the learned IIIrd Additional Sessions Judge, Sukkur, against the petitioner, by directing him to appear before him. The fact that the name of the petitioner was shown in column 2 of challan by the police is neither conclusive nor it could detract the Sessions Judge from exercising his power to take cognizance against the petitioner if upon material before him he felt satisfied that prima facie case is disclosed against him. There is no merit in this petition which is accordingly dismissed. However, as in the impugned notice issued by the learned IIIrd Additional Sessions Judge it is stated that the bail application of' petitioner was rejected by this Court which fact is not correct and that fixed for appearance of petitioner before the trial Court has already expired the trial Judge may fix a fresh date for appearance of petitioner before it and issue notice accordingly.