1. ' Munir Ahmed and Abdul Majid have filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section& 561-A, 491, 497/498 of the Code of Criminal Procedure seeking quashment of order dated 5-3-1990 of the Additional Sessions Judge, Toba Tek Singh whereby the order dated 20-1-1990 of Mr. Muhammad Anwar, Magistrate Ist Class Toba Tek Singh directing their discharge in case under sections 302, 307/34, P.P.C. registered at Police Station Rajana vide F.I.R. No.154 dated 19-4-1989 was set aside and they were committed to the lock-up to stand their trial in the said case.
2. ' There is no need for giving a detailed account of the facts of the case. Suffice it to say that the petitioners as well as their co-accused, namely, Shabbir and Faqir are facing trial for the murders of Rehmat Ali and Muhammad Siddique. All the accused were arrested in the case on 9-5-1989.
3. Initially, the names of the petitioners were put in column No.2 and those of their co-accused in column No.3 of the challan. Thereafter investigation of the case was transferred to Sardar Ibrahim Khalid D.S.P. (H.Q.), Toba Tek Singh who found all of them guilty and the prosecution submitted a supplementary challan in that regard on 10-9-1989. Challan in the case was presented before the Illaqa Magistrate on 20-9-1989. The case filed was transmitted by the Illaqa Magistrate to the Sessions Court, Toba Tek. Singh on 31-10-1989 and all the accused were directed to appear there on 14-11-1989. The learned Sessions Judge, Toba Tek Singh took up the case on 14-11-1989 and adjourned the same for trial sine die.
4. ' It appears that before the case could be taken up by the Sessions Court as directed in order dated 14-11-1989, the local police recommended the discharge of the petitioners in the case and Mr. Muhammad Anwar Magistrate Ist Class, Toba Tek Singh accepted this recommendation vide his order, dated 20-1-1990. This order was successfully challenged by Muhammad Ramzan complainant and the learned Additional Sessions Judge, Toba Tek Singh committed the petitioners to the lock-up to stand trial in the case. Hence this petition.
5. ' On behalf of the petitioners it has been argued that order, dated 20-1-1990 being administrative in nature the same was not open to revision under Chapter XXXII of the Code of Criminal Procedure, 1898. Mr. Niaz Ali Shah has relied upon Bahadar and another v. The State and another PLD 1985 SC 62, Abdul Waheed v. The State PLD 1986 Lah. 81, Nasra Surriya v. Muhammad Aslam and others 1988 SCMR 1095 and Aftab Ahmed v. Hassan Arshad and 10 others PLD 1987 SC 13 in support of his plea that the learned Additional Sessions Judge, Toba Tek Singh had no jurisdiction to hear the revision of the complainant and go ahead with the trial of the case against the petitioners. According to him, the Sessions Court took cognizance of the case only on 28-3-1980, the date on which the learned Additional Sessions Judge distributed the copies of documents amongst the accused, under section 265-C, Cr.P.C. The petitioners having been discharged by the Illaqa Magistrate prior to the said date, order dated 20-1-1990 was rendered by the Illaqa Magistrate within the four corners of his jurisdiction.
6. ' Contrarily, the learned counsel for the complainant/respondent No.3 has vehemently argued that the Illaqa Magistrate having become functus officio on 31-10-1989 and the learned Sessions Judge, Toba Tek Singh having taken cognizance of the case on 14-11-1983, the former had no jurisdiction whatsoever to render any order in the cause, thereafter. The learned Additional Sessions Judge had rightly set aside the order, dated 20-1-1990, as the Illaqa Magistrate could not interfere with his own order dated 31-10-1989. Order dated 20-1-1990 was coram non judice which cannot be given currency in these proceedings under Article 199 of the Constitution. The cases of Muhammad Alam and another v. Additional Secretary to Government of N.-W.F.P., Home and Tribal Affairs Department and 4 others PLD 1987 SC 103 and Abul Hossain Sana v. Swalal Agarwala and another PLD 1962 SC 242 have been pressed into service in support of the contentions aforementioned.
7. Learned counsel for the State has adopted the arguments advanced by the learned counsel for the complainant-respondent and submitted that there is no force in the contention of the learned counsel for the petitioners that the learned Sessions Judge or the learned Additional Sessions Judge, Toba Tek Singh had not taken cognizance of the case by 20-1-1990.
8. ' In reply, the learned counsel for the petitioners has simply reiterated his stance that the date on which the learned Additional Sessions Judge, Toba Tek Singh distributed the copies of the documents among the accused was the date on which the trial Court would be deemed to have taken cognizance, according to law.
9. ' I have considered the arguments addressed at the bar on behalf of the parties and have also gone through the reports of the precedent cases. The fate of this case depends upon the resolution of the question whether the cognizance of this case was taken by the Sessions Court on 14-11-1989 or not. The success of the petitioners depends upon returning a negative answer to this question. It is a common ground between the learned counsel for the parties that until the time of taking cognizance of the case by the Sessions Court, the Illaqa Magistrate was competent to cancel the case qua the petitioners on the basis of a report by the police after investigation or re- investigation, when the final report is submitted under section 173, Cr.P.C.
10. ' The order of the Illaqa Magistrate dated 31-10-1989 reads as under:-- {{URDU TEXT}} ' The case was taken up by the learned Sessions Judge, Toba Tek Singh on 14-11-1989 and he rendered the following order therein on the said date:-- {{URDU TEXT}} {{URDU TEXT}} ' The last-mentioned order has been treated by both sides to be an adjournment of the trial sine die. It is also a common ground between the parties that the learned Sessions Judge, Toba Tek Singh had rendered an order in the case on 11-2-1990 to the following effect:--- "The case is now due for trial, as per diary. Call the accused through notices for 21-2-1990."
11. ' On 21-2-1990, the learned Sessions Judge passed on the file of the case to the Additional Sessions Judge and directed the accused in the case to appear before the latter on 25-2-1990. During the interregnum, the local police recommended the discharge of the petitioners in the case and Mr. Muhammad Anwar, Magistrate, Ist Class, Toba Tek Singh accepted this recommendation vide his order, dated 20-1-1990. The learned Additional Sessions Judge proceeded with the distribution of the copies of the documents under section 265-C, Cr.P.C. on 28-3-1990. The above detailed chronology of the proceedings taken by the learned Sessions Judge, Additional Sessions Judge and Illaqa Magistrate clearly shows that the learned Sessions Judge, Toba Tek Singh had taken the cognizance of the case on 14-11-1989. Nothing at all would turn on the adjournment of the trial sine die by the learned Sessions Judge, Toba Tek. Singh on 14-11-1989 or even on the subsequent assignment of the case by him to the learned Additional Sessions Judge for trial. As held in Shadi Khan v. M. Saleem PLD 1978 SC 38, the Sessions Judge seized of a case for the purposes of its trial, was competent to postpone the commencement of or adjourn the trial sine die.
12. ' On the question of the cancellation of a case under section 173, Cr.P.C. being not permissible after the trial Court has taken cognizance thereof, the following excerpt from the report of Muhammad Alam and another v. Additional Secretary to Government of N.-W.F.P., Home and Tribal Affairs Department and 4 others PLD 1987 SC 103 does clinch the matter herein:-- "Chapter XVII of Cr.P.C. deals with 'the Commencement of proceedings before the Courts'. Section 204 therein deals with the issuance of process by the Court on taking of cognizance. After taking the cognizance and even before the issuance of the process, the normal procedure under the Code or the Regulation, as the case may be, would be followed. The police report would not relieve the Court of its obligation to continue the proceedings until their proper termination under the relevant law. The cancellation of case under section 173 is not permissible after the cognizance has been taken. But it could have been done before that stage. It was so held in the Full Bench case of Lahore High Court, Wazir v. The State PLD 1962 (W.P.) Lah. 405, which we feel is correct approach in so far as this point of cancellation, before cognizance, is concerned."
13. The Illaqa Magistrate having transmitted the case file to the Sessions Court on 31-10-1989 and the learned Sessions Judge, Toba Tek Singh having taken cognizance of the case on 14-11-1989, the former had become functus officio and his order, dated 20-1-1990 was rightly set aside by the learned Additional Sessions Judge, Toba Tek Singh on 5-3-1990. The order, dated 5-3-1990 has the effect of setting right a manifest illegality and the same cannot be interfered with in the exercise of this Court's jurisdiction under Article 199 of the Constitution.
14. ' For all that has been said above, this petition is dismissed with no order as to costs.