JUDGMENT SAIDUZZAMAN SIDDIQUI, J.-l. On 29.10.1994 2002 tolas of gold was recovered by Khalid Salim, A.S.I. C.I.A, Lahore, from the possession of respondents Nos. 2 and 3 on the suspicion that the gold was smuggled. F.I.R. No. 212/94 was accordingly, lodged on the same day at Police Station, Model Town, Lahore, under section 156(1) (89) of the Customs Act 1969 (hereinafter to be called as "the Act" only) Ghulam Rasool, Inspector C.I.A., after investigation of case reached the conclusion that the gold was not smuggled but was legally imported into Pakistan after payment of Customs duty. He, accordingly, recommended for cancellation of the case. Deputy Superintendent Police, C.I.A, agreed with the recommendation of Investigating Officer and a report was accordingly, filed before the Special Judge Customs, Lahore, on 13.11.1994 requesting for cancellation of F.I.R. No. 212/94. The trial Court did not agree with the conclusion of I.O. And consequently declined to discharge respondents Nos. 2 and 3 from the case and directed the police to submit challan against the accused persons.
2. The respondents challenged the order of trial Judge in Criminal Revision No. 488 of 1994 which was accepted by a Learned Judge in chambers of Lahore High Court and in consequence thereof the case against respondents 1 to 3 was cancelled and the gold recovered from respondents 2 and 3 was directed to be handed over to respondent No. 1.
3.. Leave was granted against the order of Learned Judge in chambers to consider the following legal contentions "6. Leave to appeal is granted to consider (i) whether in the circumstances of the case, the Learned Judge in the High Court was justified in law to interfere with the^order of the trial court, to cancel the case and direct the return of the gold to Malik Mumta2 Hussain respondent; and (ii) whether the power to deal with the gold vested in the Adjudication Officer and not in the trial court or for that matter in the revisional court?
7. We may note here that the leave to appeal to consider the second question has also been granted in another petition viz. Civil Petition No. 630 (L) of 1994. This petition will be heard alongwith that petition."
4. We have heard Mr. Izharul Haque, Learned ASC for the appellants and Mr. Maqbool Ellahi Malik, the Learned counsel for respondents 1 to 3.
It is not necessary to decide the second question noted in the leave granting order as the present appeal can be disposed of by deciding only the first question mentioned in the leave granting order.
5. It is well settled law that a report submitted by the Investigating Officer under section 173 Cr.P.C, is not binding on the Court. The Court, therefore, notwithstanding the recommendation of the I.O.
Regarding cancellation of case and discharge of the accused from the case, may decline to cancel die case and proceed to take cognizance as provided in section 190 Cr.P.C, and summon the accused person to face the trial. The scope of section 173 Cr.P.C, came up for consideration before this Court in the case of Falak Sher Vs. State (PLD 1967 SC 425) wherein following observations were made:- "Under sub-section (1), when the investigation is completed the police officer is required to forward to the Magistrate a report in the prescribed form. Under sub-section (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 section 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 disagree with the police report. If the Magistrate wants to start a proceeding against the accused, he must act under section 190 of the Code of Criminal Procedure.
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 him.
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. This Court in the case of Sardar Ali and others v. The State P.S.L.A. No. 66 of 1966, while dealing with a similar question, observed:- "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 officers opinion, a Magistrate take cognizance on a police report, when he proceeds against a person whose name is mentioned therein as one accused of the offence reported upon."
In conclusion, we may observe that this has been the consistent view of the High Court of West Pakistan and that Court has correctly interpreted the meaning and scope of section 173 and 190 of the Code of Criminal Procedure in Muhammad Nawaz Khan v. Noor Muhammad and others (1)."
6. In the light of above stated legal position, we now proceed to examine whether the Learned Judge in chambers was justified in interfering with the order of the trial Court. The Learned Judge in chambers while setting aside die order of the trial Court and directing cancellation of the case against die respondents as well as return of the gold to respondent No. 1 observed as follows:-- "8. A perusal of the police record shows that a thorough investigation was held into the case and inquiries were made from all the concerned agencies and on verification of the plan advanced by the petitioners and examination of the relevant record, the police had come to the conclusion that there was no material to prosecute the petitioners and the case merited cancellation.
9. The Learned trial court without adverting to the material collected by the Investigating Officer or giving detailed reasons in rejecting the request of the Investigating Agency, directed the submission of challan against all the three petitioners, though the recovery had been from only two of them. The Learned trial court should have given reasons in support of its order instead of merely stating that "it was not clear from the evidence collected by the Investigating Officer that Zafar Iqbal and Sarfraz were the personal servants of Malik Mumtaz Hussain or Malik Mumtaz Hussain had deputed them to take gold from Malik Shauka! Ali to the house of said Malik Mumtaz Hussain. If the Learned trial court had cared to go through the record, he would have found reply to this question. He was only concerned to see whether or not the gold in question was smuggled one. He could have proceeded against the petitioners only when the gold had been found to be smuggled and when the Investigating Officer had stated before him that he was satisfied that the gold in question was not smuggled but had been duly imported into Pakistan after payment of customs duty etc., there was absolutely no ground to differ with the opinion of the Investigating Officer and issuing a direction to him to submit, challan against the petitioners.
10. There is another illegality pointed out in the order. The Learned trial Court could not have directed the Investigating Officer to submit challan against the petitioners. However, it could have proceeded against them straightaway if it had found any material available against them. n. Since the gold in question was found to be duty paid and duly imported into Pakistan on the basis of the investigation conducted by the police and verification from die Customs Authorities, there was absolutely no justification for declining to accept the request of the police for the cancellation of case against the petitioners. Accordingly, I accept the petition, set aside the order of the Learned trial court, cancel the case against the petitioners and discharge the accused from the case."
7. We are unable to accept the approach of the Learned judge in chambers. The Learned Judge in chambers could not go into merits of the case as the trial Court had only decided to take cognizance of tire case and the matter was yet to be enquired into and the trial commenced.
Reasons given by the learned trial Court for not accepting the report of Investigating Officer for cancellation of the case and discharge of the accused from the case could not be discarded by the Learned Judge in chambers merely on the basis of the report of Investigating Officer. We. Have examined the reasons assigned by the trial court for not accepting the report of I.O. And we do not find these reasons either perverse, fanciful or arbitrary so as to justify interference by the Learned Judge in chambers in excise of his revisional jurisdiction under sections 435 and 439 Cr.P.C. The approach of the Learned Judge in chambers was wholly misconceived as the Learned Judge made definite observations on the merits of the case without allowing opportunity to the trial Court to record evidence in the case and to examine merits of the case. We, accordingly, allow this appeal, set aside the order of the Learned Judge in chambers and remand the case to the trial Court to proceed in accordance with the law in the light of above observations.