1. This is a petition for bail in an attempted murder case. The allegation against the two petitioners is that they, while armed with chhuri and knife, caused several injuries to one Muhammad Iqbal, some of which were declared grievous and are on the vital part of the body.
2. There is no justification for releasing the petitioners on bail in so far as the merits of the case are concerned. Their case falls within the prohibition contained in subsection (1) of section 497, Cr. P. C.
3. That is probably why the learned counsel for the petitioners have raised only one legal contention but very strenuously, i. e.-- that the police not having submitted the complete or in complete challan after the initial period of 15 days, the detention of the petitioners under the purported of 15 days the detention of the petitioner under section 344, Cr. P. C. Without the Magistrate taking cognizance in the matter is illegal.
4. Reliance has been placed on The State v. Sandullah Khan and others (PLD 1959 Kar. 157) and some other cases wherein the Full Bench authority was followed, the latest of which being Dost Muhammad v. The State and another (1971 P Cr. L J 885).
5. The learned Additional Advocate-General, has, relying on an unreported judgment of the Supreme Court in State v. Fateh Muhammad Cr. A. No. 20 of 1971, contended that the learned Magistrate has the jurisdiction, subject of course to the provisions relating to bail, to remand the petitioners to judicial custody without taking cognizance. He has also cited case-law, both from Pakistan and Indian jurisdiction, of period prior to 1959 and Rashid v. The State and 2 others (PLD 1970 Lah. 389).
6. In order to appreciate the contentions raised from both the sides, it is necessary to briefly state the facts relating to the proceedings before the'learned Magistrate. After arresting the petitioners on 20th January 1972, the police produced them before the learned Magistrate who, it is not denied, is competent to try them, on 21-1-1972 and requested for remand to the judicial custody. The learned Magistrate, while granting the remand, mentioned that the police wanted time for checking the challan. It may be mentioned here that in the subsequent remand orders the learned Magistrate either mentioned that the investigation was to be completed or simply referred to the request of the police as is mentioned in the applications for remand wherein invariably some reasons in support of the request were mentioned by them.
7. The remand has never been for more than 15 days at one time and no objection has been raised on this aspect of the matter. The petitioners moved a bail application before the learned Magistrate on 31-1-72 wherein the salient features of the case are mentioned. The learned Magistrate, by a speaking order dated 3-2-72, asked for certain papers and adjourned the case to 8-2-72. He allowed interim bail by his order, dated 12-2-72, after duly applying mind to the facts of the case. It was extended from time to time, again on due application of mind. On 4-3-72, however, by a detailed order, after considering the facts of the case, the learned Magistrate did not confirm the interim bail. The Investigating Officer prepared the report under section 173, Cr. P. C. (challan) on 12-3-72 and sent it to the P. D. S. P. Who endorsed and forwarded it to the Court. The challan was received in the Court on 11-4-72. A petition for bail was moved in the Court of Session on 8-3-72 which was dismissed on 17-3-72. On the question of the submission of the challan, the learned Additional Sessions Judge noted the con--tention of the Public Prosecutor that the challan was complete on 9-2-72 "as it is evident from the police file and the police is wilfully withholding the challan presumably with the intention of helping the accused-petitioners, to claim bail on this count." The petitioners, after having failed before the learned lower Courts, moved this Court f for bail on 28-3-1972. The position before the learned Magistrate at present is that a date has been fixed for recording of the evidence.
8. The Investigating Officer, who remained present during the arguments, on the asking of the learned Additional Advocate-- General stated that on every occasion when a remand order was obtained the police file was placed before the learned Magistrate. He also asserted that the learned Magistrate never passed a remand order without looking into the police papers. Even if this statement is ignored, there is no averment in the petition that there was any contravention of the provisions contained in subsection (1) of section 167, Cr. P. C., relating to the submission of a copy of the entries in the police diary to the Magistrate or that the learned Magistrate failed to apply his mind to the facts of the case when remanding the petitioners to judicial custody.
9. The legal contention of both the learned counsel for the petitioners is based on facts which are almost admitted, namely, that the learned Magistrate allowed remand to judicial custody without formally taking cognizance under section 190, Cr..P. C., on the submission of an incomplete or complete challan under section 173, Cr. P. C.
10. The question raised by the learned counsel for the petitioners is not any more of a practical consequence in so far as the present petition for bail is concerned. It is conceded that the learned Magistrate could direct remand to custody for 15 days without taking cognizance under section 167, Cr. P. C. Thus the custody from 21-1-72 to 4-2-72 is, admittedly, not illegal. Even if the entire argument, as it stands, is accepted as valid, and if the period of interim bail is excluded, the so- called illegal detention would be from 5th February to llth February and from 5th March to 11th March 1972: As already noted, the papers were stated to have been presented before the Magistrate on every date. The challan was complete, according to the assertion of the public prosecutor quoted above, on 9-2-72 and, in any case, on 12-3-72. The petitioners were remanded to judicial custody from time to time and one of the dates is 11-3-72. If the learned Magistrate had seen the papers on 11-3-72, it cannot be said that he was unaware of what was the material against the petitioners to be put before him nor it can be said that he could not have mentally registered the same material so as to come to a conclusion whether or not he wanted to take cognizance in the matter. Taking of cognizance is not defined in the Code It is, however, generally accepted, of course depending upon the facts and circumstances of each case, that when the Magistrate applies his mind to the facts of the case with a view to taking action in the matter, it amounts to taking cognizance. See Wazir v The State (PLD 1962 Lah. 405). After the completion of the challan the object raised by the learned counsel was no more available to the petitioners and, in any case, after the formal receipt of the challan in Court on 11-4-72 and subsequent fixing the hearing for evidence, it cannot at all be urged that the present detention of the petitioners is illegal because the Magistrate has not taken cognizance. The period of illegal detention, if any, is not the concern of this Court in the present proceedings. In view of what I have said above, the contention raised by the learned counsel, in so far as the present detention of the petitioners is concerned, fails on the short ground that the learned Magistrate has already taken cognizance. But in view of the arguments by the learned counsel from both the sides, I want to make a short comment on the legal question raised by the learned counsel for the petitioners.
11. Their reliance is on a Full Bench judgment by the Karachi Bench of the erstwhile West Pakistan High Court in a case which arose within Karachi jurisdiction. The facts of that case are entirely different.
12. However, there is no doubt about the proposi--tion that their Lordships did- interpret section 344, Cr. P. C. As is being contended by the learned counsel, and held that "the Court cannot postpone the commencement of inquiry or trial, or adjourn an inquiry or trial, or remand the accused to custody, unless it takes cognizance of the offence first." Even though their Lordships observe that "in order to grant remand the Court has also to study -the evidence collected to ascertain that it raises suspicious against the accused and most obviously that result cannot be achieved without applying mind to the case" and "taking cognizance of an offence has been held to mean application of the mind to the case (See 37 Cal. 412 and 18 Cr. L J 347) and "when the Court applies its mind to the case for these purposes it takes cognizance of the offence"; yet it was held that "no cognizance can be taken unless a police report, in the terms of section 190 (1) (b), is before the Court." On the question of police report, the learned Judges followed the view in Darshan Singh's case (PLD 1957 Kar. 219) that there should be "some sort of challan from the side of the police" presumably meaning that it could be incomplete or complete challan. With greatest respect, it may be pointed out that some of the observations made by their Lordships would lead to conflicting results and, in any case, another Full Bench of the Lahore seat of the same Court, later on in the case of Wazir held that mere sub--mission of an incomplete or complete challan before a Magistrate does not amount to his taking the cognizance of the offence. The provisions contained in section 36 read with the relevant items in Schedule III to the Criminal Procedure Code, which empower a Magistrate to authorise the detention of a person during police investigation, were not brought to the notice of their Lordships of the Karachi Bench. In the unreported Supreme Court ruling cited by the learned Additional Advocate----General, it was held the power of the Magistrate to authorise detention pending the investigation is not necessarily subject to section 167, Cr. P. C., and for that matter "other provisions of the Code." Thus even if the contention of the learned counsel for the petitioner, that the detention of an accused after 15 days becomes illegal without the Magistrate taking cognizance under section 190 (1) (b) read with section 344, Cr. P. C., is supported by the Karachi Full Bench case, this view, namely, that the power to authorise detention is subject to section 190(1)(b) read with section 344 has not been approved by their Lordships of the Supreme Court in the above-cited ruling. Even though the specific provision considered in this connection was section 167, Cr. P. C., yet the consideration of the entire subject by their Lordships and the conclusion thereon is that other similar provisions, which would of course include sections 190 (1) (b) and 344, would not control the power of the Magistrate in this behalf. With respect, it is pointed out that the observations of their Lordships in the cited case arose out of such circumstances that it was perhaps not necessary to make specific reference to all the other similar provisions. For example, in this connection the provisions relating to bail contained in section 497, Cr. P. C., can also be noticed. Under subsection (1) thereof, a Magistrate has no jurisdiction to release an arrested person if "there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life" unless of course the case falls within the proviso relating to women, sick or infirm persons. While interpreting section 344, for purpose of remand of the accused to custody, section 497 cannot be ignored. Apart from the fact that the expression "after taking cognizance" is not mentioned in section 344, the use of the two other expressions, namely, "postpone the commencement of" and "adjourn an inquiry or trial" is indicative of the fact that postponement of the commencement of the inquiry has been visualised in those cases as well where taking of the cognizance is postponed because the commencement of an inquiry can be contemporaneous with the taking of the cognizance. Explanation to section 344 also shows that pending the investigation sad before the police is able to submit a report under section 173 read with section 190(1)(b), Cr. P. C., if sufficient evidence has been obtained to raise a suspicion against the accused and it also appears likely that further evidence may be obtained, the accused can be remanded to custody pending the investigation. This interpretation was adopted in the High Court Rules and Orders. Rule 10 of Chapter 11-B in Volume III of High Court Rules and Orders reads as follows: -
10. If the limit of I S days has elapsed, and there is still need for further investigation by the police, the procedure to be adopted is that laid down in section 344, Criminal Procedure Code. The case is brought on to the Magistrate's file and the accused, if detention is necessary, will remain in Magisterial custody. The case may be postponed or adjourned from time to time for periods of not more than 15 days each, and as each adjournment expires the accused must be produced before the Magistrate, and the order of adjournment must show good reasons for making the order."
13. The expression "brought on to the Magistrate's file" in the above quoted rule has to be read in context of the other provisions in the Chapter which mostly relate to the duties of the Magistrate under section 167, for maximum of 15 days during which period, so to say, the case remains on the police file. In other words, "Magistrate's file" is to be read with, as mentioned in rule 2 of the same Chapter, "Magistrate's lock-up under section 344" under judicial remand orders, which are kept on the Magistrate's file, as distinct from a remand to police custody for maximum period of 15 days as permitted by statute, namely, section 167, Cr. P. C.
14. The above interpretation of section 344, namely, that it is not necessary for a Magistrate to take cognizance of a case for remanding the accused to judicial custody pending the completion of the investigation, has been adopted in many cases. But in view of the latest pronouncement of the Supreme Court in the case State v. Fateh Muhammad, it is not necessary to notice all the; a cases.
15. For the same reason, namely, the pronouncement of the Supreme Court on the question of the power of a Magistrate to authorise detention and its not being subject to other provisions of the Code, with greatest respect, it is no more necessary to follow the Karachi Full Bench judgment. I, therefore, hold that the period of detention of the petitioners from time to time under a warrant of remand to judicial custody by the learned Magistrate without taking cognizance is not illegal either on interpretation of section 344, Cr. P. C., or on account of any other provision of law.
16. Before closing the judgment it needs to be emphasized that section 344, Cr. P. C., gives no licence to a Magistrate to postpone the taking of cognizance and commencement of the inquiry or trial for unreasonable periods of time. The entire scheme of the Code shows that the police is ordinarily supposed to complete` the investigation within 24 hours, but in some cases it can take 15 days to complete the same and it is in very rare cases on sufficient written grounds and on satisfaction of the Magistrate, that the commencement can be postponed beyond 15 days. It is high time that the Magistrate while granting remand to judicial custody, pending the completion of investigation (under section 344, Cr. P. C. Should not ignore the above-mentioned scheme of the Code and should observe the direction contained in the High Court Rules and orders in this behalf. With the above findings and the remarks, this petition is dismissed.