1. Granted subject to all just exceptions.
2. This application has been filed for quashment of the proceedings pending against the applicants arising out of F.I.R. No,17 of 1994 of Chamber Police Station, Hyderabad District under sections 326, 323, 504/34, P.P.0 and section 337-E(vi), P.P.C.
' Briefly the facts are that on 26-4-1994 the complainant had lodged a report at Chamber Police Station which was recorded in daily diary and complainant was referred to Medical Officer for examination and after receipt of medical certificate, the said F.I.R. Was registered on 4-5-1994.
According to this report, there was a dispute between the complainant, who is a starter at Gulab Laghari Bus Stand, and present applicant No,1, Abdul Karim Laghari over the said starter ship.
According to F.I.R., the present applicant No,1 had previously also fought with the complainant and such reports were registered at Gulab Laghari Police Station. It is further alleged that on the day of incident when the complainant was going towards Mal-Piri at about 6-00 p.m., the present applicant and his three sons, applicants Nos. 2 to 4 confronted him. Applicant Siddique gave hatchet blow to the complainant whom he warded off with his hand and in the course his one finger was severed and started bleeding. The other applicants also had given him Lathi blows. The police after recording the F.I.R. Investigated the matter and consequently submitted a report in the Court of Judicial Magistrate, Tando Allahyar filing a summary for disposal of the case as 'B' Class.
The learned Judicial Magistrate taking cognizance on the basis of said report directed the notice to issue and required the applicants to attend the Court holding that a case was made out under section 326, P.P.C(old) and section 334, P.P.C(new). Being aggrieved, the present applicants moved an application for quashment of the said proceedings as their application under section 249-A, Cr.P.C. Has been rejected.
' I have heard Mr. S. Madad Ally Shah, learned counsel for applicants. Learned counsel has mainly argued that once the police has submitted the report for cancellation of the case, the Judicial Magistrate had no jurisdiction to take cognizance in the case and to issue the process. He has placed reliance on the case of Muhammad Siddique and 5 others v. Mst. Badar Munir and another (1993 SCM R 233). I have gone through the said judgment of the Hon'ble Supreme Court. In my view this case has no bearing on the present case as the same was a direct complaint case and the facts are quite different. Learned counsel has also relied on the case of Syed Hamid Muqeem Bokhary v. The State (PLD 1985 Lah. 71). Even the facts of this case are also different than the present case and have no bearing whatsoever in the present matter. The point which requires consideration is as to whether in such circumstances when a report is placed before the Magistrate by the police can he take the cognizance, even if according to police report, no case is made out? The provision of section 190, Cr.P.C. Is the relevant provision which reads as under:- ' Section 190. Cognizance of offences by Magistrate.---(1) Except as hereinafter provided, any District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence---
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer;
(c) upon information received from any person other than a police officer, or upon his knowledge or suspicion, that such officer has been committed.
(2) The Provincial Government; or the District Magistrate subject to the general or special order of the Provincial Government, may empower any Magistrate to take cognizance under subsection (1), clause (a) or clause (b), of offences for which he may try or send to the Court of Session for trial.
(3) A Magistrate taking cognizance under subsection (1) of an offence tribal exclusively by a Court of Session shall, without recording any evidence send the case to the Court of Session for trial.
The above provision clearly shows in clause (b) of subsection (1) that a Magistrate can take cognizance of a case on report in writing of such facts made by any police officer. In such circumstances, a Magistrate is competent to take cognizance if according to him facts revealed in the report placed before him amount to constitute a cognizable offence. There is no bar against such proposition nor a mere opinion of a police officer would curtail the jurisdiction or authority of the Magistrate as invested in him under the above-referred provision. Reliance may be placed on the case of Muhammad Ashraf alias Ashram v. The State and another (1993 PCr.LJ 686).
' Learned counsel has then argued that in such circumstances the case would not be triable by the Magistrate First Class but is triable by Court of Sessions. Be that as it may, the Magistrate has only issued notice requiring the attendance of the accused and has not framed the charge in the case.
After procuring the attendance of the accused in Court he may direct the case to be referred to Sessions Court for trial as required under law.
' Learned counsel has then argued that on merits of the case there would be no evidence available except the evidence of the complainant himself. It may be observed that this is not the stage to dilate upon this proposition. However, it may be observed that the evidence of the complainant if unshattered can also be made basis for conviction. Reliance may be placed in the case of Sanaullah and 3 others v. The State (1983 SCM R 15).
' In view of the above discussion, I find no merit in the present application which is accordingly dismissed. Above are the reasons for the short order announced in Court on 4-7-1995.
3. Dismissed as infructuous.