This petition under section 561-A, Cr.P.C. By Shah Muhammad and five others seeking quashment of the proceedings in a case under sections 307, 325, etc. P.P.C. Pending in the Court of Magistrate Section 30, Chunian, District Kasur, has arisen in the following circumstances.
2. Two cross-cases were registered one on the report of Sardar A.I, father of Shah Muhammad, Muhammad Inayat and Muhammad Hanif, under sections. 307, 325 etc. Of the P.P.C. Against Muhammad Yaqoob and others ad the second against the petitioners and others also under sections 307, 325 etc. P.P.C. On the report of Muhammad Yaqoob, respondent. The police found the petitioners Muhammad Inayat, A.I Muhammad, Akbar A.I and Muhammad Hanif innocent of the offence and had them discharged under section 173, Cr.P.C. Muhammad Yaqoob, respondent, filed a private complaint against the above-mentioned four petitioners but the complaint was dismissed by the Judicial Magistrate, Chunian. It is stated that when the trial of the challan started, the learned Magistrate recorded the examination-in-chief of Muhammad A Yaqoob and on the request of the Assistant District Attorney summoned the petitioners also to stand their trial. The petitioners filed a revision petition but that was dismissed by the learned Additional Sessions Jduge, Kasur, by his order, dated 6-7-1986.
3. It is maintained that there was no legal justification for the learned Magistrate to summon the petitioners, when four of them had been discharged by the order of the Illaqa Magistrate and the private complainant of Muhammad Yaqoob had been dismissed; that in any case, the learned trial magistrate was wrong in summoning the petitioner on the incomplete statement of Muhammad Yaqoob. Learned counsel for the petitioner cited Muhammad Ibrahim and others v. Qudrutullah Ruddy and others PLD 1986 Lah. 256 in support of his contention.
4. I had the occasion to consider this question is two cases, namely Waqarul Haq v. The State PLD 1988 Lah. 336 and Riaz Ahmad etc. v. The State (Criminal Revision No. 204 of 1988). In my view, the case is covered by the law enunciated in Raja Khush bakhtur Rehman and another v. The State 1985 SCMR 1314. The facts in that case were that according to the F.I.R. Nazir accused had, at the Lalkara of Shahbaz and Khushi Muhammad, fired at and killed Gharib Alam, deceased, with a .12 bore pistol. Nazir accused was apprehended at the spot while Shehbaz and Khushi Muhammad nianaged to make good their escape in a jeep driven by Muhammad Shafique accused. It was said that the murder was the result of collusion- and conspiracy with Raja Khush bakhtur Rehman and Muhammad Shafique petitioners before the Supreme Court. In the challan, both the petitioners, Raja Khush bakhtur Rehman and Muhammad Shafique; were shown in column No. 2 as a result of the police investigation as they were found to have been falsely involved on account of long standing enmity. The investigation, however, revealed the complicity of another accused namely 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. Dissatisfied with the result of the police investigation, Qutab Hussain, complainant, filed a complaint which was entrusted to a Magistrate under section 202, Cr.P.C. According to his report, therewas no credible evidence against Raja Khush bakhtur Rehman and Muhammad Shafique but a prima facie case was found agianst Nazir, Shahbaz and Khushi Muhammad. The challan case was sent to the Court of Sessions and the learned Additional Sessions Judge, summoned not only the three accused persons shown in column No3 but also those who had been placed in column No.2. Those persons challenged the order of the learned Additional Sessions Judge but their petition was dismissed by the High Court.
5. It will be noticed that in Raja Khush bakhtur Rehman's case not only had the police found the three accused persons innocent of the offence and had them discharged by the Magistrate's order but also there was a finding by the Magistrate in 'the proceedings under section 202, Cr.P.C. That there was no credible evidence against them. Yet, the learned Additional Sessions Judge had summoned them by the following order, dated 3-10-1978: "Raja Khush bakhtur Rehman, Raja Shafique-ur-Rehman and Khushi Muhammad have been placed in column No.2 of the challan. I have gone through the record of the case and feel that the accused who had been placed in column No.2 of the challan should also be summoned. In view of the matter, the accused Raja Khshbukhtur Rehman, Raja Shafique-ur--Rehman and Khushi Muhammad should also be summoned for 10-10--1978. Accused Shahbaz is not present today."
6. It was held that `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 iv; list whom the challan is submitted'. Dealing with the contention 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 Illaqa Magistrate to whom the case had been referred under section 202, Cr.P.C., it was observed that `the learned Judge in his order dated 13-10- 1978 has given reasons for sutumoning the petitioners. He had perused the record before him. His order summoning the petitioners thus suffers from no legal infirmity'.
7. Thus according to the law laid down in Raja Khushbukhtur Rehman and another v. The State, the fact that the name of a person does not find mention in the challan is of little consequence to the jurisdiction of the trial Court to summon for cognizance can be taken even if the offenders be unknown and 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'. It must, therefore, be held that in summoning the petitioner, the learned trial Court did not commit any illegality and that the order in question does not suffer from any legal infirmity.
8. The order of the Magistrate discharging the petitioners on the recommendation of the police was obviously made under section 173(3), Cr.P.C. If I may venture to quote from Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lah. 336:- "The making of an order under section 173(3), Cr.P.C. Could not affect the jurisdiction of the learned Court, for, such an order, to quote from Bahadur v. State PLD 1985 SC 62 is an administrative order and when the Magistrate makes it there is no lis before him; there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. To put it differently, the making of the order under section 173(3), Cr.P.C. Does not involve, and the order is not made, in the course of, any Us inter parties; it cannot therefore, create res judicata.
9. It appears that the police record was before the learned trial Magistrate when he made the impugned order summoning the petitioners and that as the entire case was before him, he was competent to summon the petitioners and to take cognizance of the offence as regards them also.
I do not, therefore, find any merit to the petition and dismiss it.