FAZAL KARIM, J.-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. PPC, 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 Ali, father of Shah Muhammad, Muhammad Inayat, and Muhammad Hanif under sections 307, 325 ect. Of the P.P.C, against Muhammad Yaqoob and others and the second against the petitioners and others also under section 307, 325 etc. PPC on the report of Muhammad Yaqoob, respondent. The police found the petitioners Muhammad Inayat, Ali Muhammad, Akbar Ali 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 Yaqoob and on the request of the Assistant District Attorney summoned the petitioners also to stand their trial. The petitioners filed a revision but that was dismissed by the learned Additional Sessions Judge, 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 complaint of Muhammad Yaqoob had been dismissed; that in any case, the learned trial Magistrate was wrong in summoning the petitioners on the incomplete statement of Muhammad Yaqoob. Learned counsel for the petitioners cited Muhammad Ibrahim artd others V. Qudratullah Ruddv and others (PLD 1986 Lahore 256). In support of his contention.
4. I had the occasion to consider this question in two cases, namely, Waqarul Haq V. The State (P.L.D 1988 Lahore 336) and Riaz Ahmad etc. V. The State (Crl. Revision No.204/1988). In my view, the case is covered by the law enunciated in Raia Khushbakhtur Rehman and another V. The State (1985 S.C.
M.R. 1314). The facts in that case were that according to the F.I.R., Nazir accused had, at the lalkara of Shehbaz 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 mananged to make good their escape in a jeep driven by Muhammad Shafique accused. It was said that the murder was the resuIt of collusion and conspiracy with Raja Khushbakhtur Rehman and Muhammad Shafique petitioners before the Supreme Court. In the challan, both the petitioners, Raja Khushbakhtur Rehman and Muhammad Shafique, were shown in column No.2 as a resuIt 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 along with that of Nazir and Shehbaz was placed in column No.3. Dissatisfied with the resuIt 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, there was no credible evidence against Raja Khushbakhtur Rehman and Muhammad Shafique but a prima facie case was found against Nazir, Shahbaz and Khushi Muhammad. The challan case was sent to the Court of Sessions and the learned Additional Session Judge summoned not only the three accused persons shown in column No.3 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 Khushbakhtur 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 Bukhtur 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 Khush Bukhtur Rehman, Raja Shafique-ur-Rehman and Khushi Muhammadshould also be sommoned for 10.10.1978. Accused Shehbaz 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 against 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 guiIty 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 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."
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 him, 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 petitioners, 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 Vs. The Sate (PLD 1988 Lahorc 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 S.C.62) is an administrative order and when the Magistrate makes it there is no lis before him; here 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 lis 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 offences as regards them also. I do not, therefore, find any merit in the petition and dismiss it.