1. ' MUNAWAR AHMAD MIRZA, C.J.--- This appeal is directed against judgment, dated 7-6-1992 passed by learned Sessions Judge, Nasirabad at Dera Allah Yar, whereby on conviction under section 302, P.P.C. Appellant Muhammad Siddique has been sentenced to suffer imprisonment for life and fine of Rs,50,000 or in default further rigorous imprisonment for 5 yeaRs,
2. Incident had taken place on 13-3-1991. At the relevant time complainant Muhammad Ramzan was driver of Passenger Bus No,QAA-3297 which plies between Jacobabad and village Mehar Gul Balan Shakh. On 13th March, 1991, complainant started from Jacobabad at the scheduled time. At about 4-30 p.m. He parked the bus near Goth Kajla Khan Balan Shakh for facilitating passengers who wanted to get down there. Suddenly two fire shots were heard. He saw that a person sitting behind his seat received fire-shot injury and died instantaneously. The two accused persons attempted to escape but complainant Muhammad Ramzan, Azizullah Cleaner and Dur Muhammad Munshi alongwith other persons chased and apprehended both the culprits. Appellant disclosed his name as Muhammad Siddique son of Shafi Muhammad and that of co-accused Hazoor Bakhsh son of Muhammad Bakhsh. They also disclosed name of the deceased to be Muhammad Sharif who according to them had been killed on account of previous murder of their relative committed by deceased. Complainant took dead body in his bus and lodged F.I.R. No,6/91 under section 302/34, P.P.C. With Cattle Farm Police Station District Jaffarabad, They also handed over custody of both the accused alongwith revolver and other ammunition to concerned police.
2. After necessary investigation chailan against appellant was submitted on 28-3-1992 wherein Hazoor Bakhsh was placed in Column No,2. At the commencement of the trial, learned Sessions Judge. Nasirabad, on 25-9-1991 read out, charge to appellant which was denied by him. Appellant pleaded 'not guilty' and claimed trial. Prosecution had examined seven witnesses namely; (P.W.i)
3. Dr. Shah Bakhsh. (P.W.Ii) S.D.M. Muhammad Azim (P.W.Iii) Muhammad Akbar, (P.W.Iv) Rashid Ahmad, (P.W.v) Complainant. Muhammad Ramzan, (P.W.Vi) Azizullah and (P.W.Vii) Kalimullah Investigating Officer. Whereas P.W. Muhammad Yakoob was dropped and P.Ws. Dur Muhammad and Fazal Muhammad were not traceable despite efforts. Statement of appellant under section 342, Cr.P.C.
4. Was recorded wherein he denied all the allegations. It was alleged by him that he was following Hazoor Bakhsh the real culprit from whom bandolier and cartridges were recovered but police unjustifiably implicated him in the matter. Appellant, however, declined to give statement on oath within the purview of section 340(2), Cr.P.C. No defence was led by him. Eventually learned Sessions Judge, Nasirabad on appraisement of material available on record, found appellant guilty for causing murder of Muhammad Sharif son of Shandad Khan and sentenced him vide judgment dated 7-6-1992 as above.
5. ' Mr. Jamal Khan Mandokhail, Advocate strenuously urged that prosecution evidence does not constitute commission of any offence by the petitioner. According to him record indicates that weapon used for commission of offence belonged to Hazoor Bakhsh who though apprehended on the spot, yet on account of manipulation with police got released and instead appellant was unjustifiably implicated in the matter. Learned defence counsel submitted that serious doubt about involvement of appellant exists on record, therefore, he is entitled to be acquitted.
6. ' Whereas learned Additional Advocate-General contended that ocular version coupled with circumstantial and medical evidence effectively establishes guilt of appellant who was apprehended red-handed alongwith weapon used for killing deceased Muhammad Sharif. He, however, found difficulty in explaining why Hazoor Bakhsh had been liberated by police despite his presence and apprehension at the time of incident specially when crime weapn also belonged to him. Learned Additional Advocate-General on the available material argued that trial Court as well as appellate Court at any stage of the proceedings can initiate proceedings against said Hazoor Bakhsh; who was placed in column No,2 of the challan.
7. ' We have carefully considered the arguments advanced by learned counsel for parties. The prosecution evidence starting from investigation clearly discloses that after fire-shot, appellant and Hazoor Bakhsh ran from the spot and attempted to escape, but they were apprehended by complainant, Munshi Azizullah and other persons travelling in the bus. Evidence further suggests that revolver with which deceased Muhammad Sharif had been killed was recovered from appellant whereas, bandolier and cartridges etc. Were secured from Hazoor Bakhsh. Undisputedly licence for the said weapon/revolver is in the name of Hazoor Bakhsh. It is really astonishing how despite such preponderant evidence Investigating Officer placed Hazoor Bakhsh in Column No,2 of the challan. It appears that investigation was diverted to wrong directions. It was obligatory for Investigating Officer to ascertain how licensed weapon came in possession of appellant specially when bandolier and cartridges etc. Still remained in his possession. It is high time when Investigating Officers must be put to task about their wrong doings. Since we do not propose to finally decide the matter, therefore, trial Court may consider about conduct of Investigating Officer at the time of fresh adjudication.
8. It may be seen that there exists strong prima facie case for holding trial of said Hazoor Bakhsh.
9. Undoubtedly trial Court enjoys plenary powers for summoning the accused placed in Column No,2 for facing trial if evidence so justifies. Reference in this behalf can be made in reported judgments;
(i) PLD 1967 SC 425 at page 427:-- "Under subsection (1), when the investigation is completed the Police Officer is required to forward to the Magistrate a report in the prescribed form. Under subsection (3) when it appears from the report forwarded under section 1, that the accused has been released on his bond 'the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit'. It is clear that under subsection 3 a Magistrate may agree or may not agree with the police report. It, however, does not say what step the Magistrate should take if he disagrees with the police report. If the Magistrate wants to start a proceedings against the accused, he must act under section 190 of the Code of Criminal Procedure.
10. ' Section 190 provides that a Magistrate 'may take cognizance of any offence (a) upon a complaint,
(b) upon a police report, or (c) upon information received by himself.
11. ' Now, the question is, if he disagrees with the report can he take action under clause (b) against those whose names have been placed under Column 2 of the challan. As already pointed out, the Magistrate is not bound by the report submitted by the police under section 173. When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the Investigating Officer. There is nothing in section 190 to prevent a Magistrate from taking cognizance of the case under clause (b) in spite of the police report."
12. ' Muhammad Arif and others 1970 SCMR 178 at page 180:- "According to the learned counsel in the present case, the police had made a report that the case against the petitioners be cancelled, and, therefore, the order of the A.D.M. To proceed with the cases was unwarranted by law. He contended that the view of the High Court that the Magistrate can take cognizance of an offence even though there is a negative report by the Police Officer is not in consonance with law. The contention of the learned counsel is without substance. This aspect of the question was considered by this Court in the case of Falak Sher and others v. The State (1). It was held in that case that the Magistrate is not bound by the report submitted by the police under section 173, Cr.P.C. When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the Investigating Officer. There is nothing in section 190 to prevent a Magistrate from taking cognizance of the case under clause
(b) in spite of the police report. It was further held that the action of the Magistrate in issuing summons to accused despite the fact that Investigating Officer in his report under section 173, Cr.P.C. Had placed their names in Column 2 thereof was correct."
(iii) Abdul Rauf and others v. The State 1980 SCMR 58 at page 61:-- "After some arguments it was discovered that this Court finally settled the controversy in this behalf, in Falak Sher and another v. The State (1). In that case it was held that the action of a Court taking cognizance of an offence on a negative report of the police (as in this case), is covered by clause (b) of section 190(1) of the Criminal Procedure Code; notwithstanding the fact that the police does not want to proceed against the accused. While reaching the above conclusion of relevant provisions contained in section 173 of Cr.P.C. Which empowers the Magistrate, on the submission of report by the police, to discharge the accused of his bond 'or otherwise as he thinks fit', were also taken note of. An observation in an earlier decision of this Court in the case of Sardar Ali and others v. The State P.S.LA. No,66 of 1966 was also referred to namely, that reference to section 173, Cr.P.C. Which prescribes the details that must go into a police report of the relevant kind, shows that the requirements are of a factual nature so that, irrespective of the Investigating Officer's opinion, a Magistrate takes cognizance on a police report, when he proceeds against a person whose name is mentioned therein as an accused of the offence reported upon. It also needs to be mentioned in this behalf that the judgment of the Lahore High Court in Muhammad Nawaz Khan v. Noor Muhammad and others (2) was also mentioned with approval.
13. ' As the question raised in connection with nature of the police report and consequences thereof, by the learned counsel, found complete answer in the ruling of this Court, he tried to contend that the same should not be considered as having, in any way, settled the controversy, because, as he put it, the ruling is against the language of the Statute, namely, section 190, Cr.P.C. He requested for re-opening and re-examination of the same question by this Court, may be in a larger Bench. This has already been done in the case of Muhammad Akbar v. The State and another. It was re- affirmed that a Magistrate could, irrespective of the opinion of the Investigating Police Officer, take cognizance, if upon the material before him, he finds prima facie case made out against the accused. The decision in the case of Falak Sher and another v. The State was noted, as supporting this view. After hearing the learned counsel on this point we see no compelling reason for re- opening and review of the above decision."
14. From the above reports it is quite obvious that trial Court taking cognizance of offence was competent to include for trial accused shown in Column 2 of the challan. In the instant case despite reasonable and prima facie evidence, trial Court has failed to exercise jurisdiction vested in it by law. However, on the pointation of learned Additional Advocate-General we are of the view that Hazoor Bakhsh should have faced trial concerning murder of Muhammad Sharif alongwith appellant. It is well-settled that appeal being continuation of original matter, vests same authority and jurisdiction in the appellate forum, which original Court normally exercised. Therefore, to avoid prejudice without dilating upon merits, we are inclined to partly accept the appeal, set aside the conviction and sentence recorded against appellant and remand the case for retrial.
15. ' We further direct that bailable warrants in the sum of Rs,50,000 be issued against Hazoor Bakhsh for his appearance before Sessions Judge, Nasirabad at Dera Allah Yar for facing trial in this case alongwith appellant.
16. ' Since incident had taken place on 13-3-1991 and appellant is in custody, therefore, it is observed that-by giving special priority, proceedings be expeditiously finalized as far as possible by holding day to day proceedings so that it may conclude at the most within for months.
17. ' Appeal disposed of in above terms.