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Revision No. 90 of 1966, decided on 15^th March 1966.

Ss. 190, 173 & 204‑Cognizance of offence by Magistrate on police report under S. 173‑Opinion of Police Officer submitting report not binding on Magistrate‑Magistrate taking cognizance of offence becomes seized of entire case and seisin extends not only to person against whom challan submitted but to other persons who might appear implicated therein‑Persons mentioned only in column No. 2 of challan submitted by police‑Magistrate, nonethe less, competent to summon such persons as accused if he deems such action necessary.

Mirza Muhammad Abbas v. The State P L D 1964 Lah. 7 and A I R 1929 Pat. 514 distinguished.

Ss. 190 & 204 and Evidence Act (I of 1872), S. 32‑Dying declaration‑Evidence of great importance in criminal trial, if genuine‑Such evidence sufficient for Magistrate to act upon--Penal Code (XLV of 1860), S. 302.

G. M. Mirza for Petitioners.

Qamar‑ud‑Din for A.‑G: for the State.

Date of hearing‑: 21st February 1966.

On the 21st of July 1965, one Mitshtaq, resident of Sahoki Malian was proceeding in a tonga, he was fired at and injured. He made a statement before the Naib‑Tahsildar, Sheikhupura, at 9‑15 p.m. in the hospital, Sheikhupura, to the following effect:-

"We were returning from Maujki Mallian

Sardar Dogar, his son Mushtaq; Bashir Ahmad, Nazir, brothers of Bashir, Siddique and Jan Muhammad alias Jani were sitting armed. Sardar Dogar shot me with a gun fire which hit me. The other persons, namely, Mushtaq, Jani, Bashir and Nazir were armed with guns. I was accompanied by Altaf Husain and Sajjad Hussain, my real brothers."

After having made the above statement the deponent died and accordingly a case under section 302/34, P. P,. C., was registered. The police after having investigated the case submitted a report quite detailed one, under section 173, Cr. P. C., to the Ilaqa Magistrate. In the opinion of the Investigating Officer the petitioners were innocent and their names were placed by him in column No. 2, of the challan and Bashir and Nazir (brothers inter se) were challaned to Court. The learned Magistrate on the 16th of December 1965, when the challan had been put up before him passed an order to the following effect:

"The challan has been put up before‑ me on the 4th of December 1965. I have gone through the police report under section 173, Cr. P. C. and find that the four accused persons, namely, Jan Muhammad alias Jani, Sardar Ali, have been shown in column No. 2 of the police challan. I have also gone carefully through the dying declaration of Mushtaq Hussain, deceased, in which he makes mention of Sardar Dogar, his son Mushtaq, Bashir, Nazir, Siddique and Tan Muhammad, as his assailants. The dying declaration has been duly recorded by a Magistrate and I see no reason prima facie to throw out the dying declaration, and therefore, I order that Jan Muhammad, Sardar Ali, Siddique and Mushtaq accused persons who have been shown in column No. 2, to be summoned . . . . . so that proceedings may be taken in the case against them according to law."

Aggrieved by this order the petitioners came in revision to the High Court.

2. The learned counsel for the petitioners raised the following two contentions:

"(1) that the order passed by the learned trial Magistrate was a mechanical order without stating under what provision of the Criminal Procedure Code he had summoned the petitioners who were shown in column No. 2 by the Investigating Officer, and

(2) that according to section 190 of the Criminal Procedure Code, neither clause (a) nor clause (c) of subsection (1) were applicable to the present case and assuming that the learned Magistrate took action under section 190(b) subsection (1) clause (b) of the Criminal Procedure Code, even then the order is bad in law, for there was no material before the learned Magistrate which empowered him to summon the present petitioners in spite of the fact that their names were shown in column No. 2 of the report submitted by the Investigating Officer, under section 173, Cr. P. C."

3. On the above contentions raised by the learned counsel, the petition was admitted to hearing on the 8th of February 1966. I was addressed at length by Mr. Ghulam Mujaddid Mirza, the learned counsel for the petitioners. As regards the first contention, that the order of the learned Magistrate was a mechanical one, reliance is placed on Mirza Muhammad Abbas v. The State (P L D 1964 Lah. 7). In that case the name of the petitioner, Mirza Muhammad Abbas, was. entered in column No. 2 in a case registered under section 379; P. P. C. At a stage when the prosecution evidence was being recorded the P. S. I. requested the learned Magistrate to summon Mirza Muhammad Abbas (accused person in that case). The learned Magistrate passed an order in these terms:

"P. S. I. requests that the case under section 379/411, P. P. C. was made out against Mirza Muhammad Abbas whose name had been mentioned in column No. 2 and that he be summoned. The prayer of the P. S. I. is accepted. Mirza Muhammad Abbas be summoned fox the Ist of February 1963."

In a revision petition against the order the learned Judge came to the conclusion that the order was not passed after consideration of the evidence against the petitioner but it was a mechanical order, in accepting the request of the P. S. I. Here the position is just the reverse of it inasmuch as the Magistrate did not agree with the conclusion arrived at by the police. The police only gives its opinion which is not binding at all on the Magistrate.

When the Court becomes seized of the case relating to a criminal transaction, it becomes seized of the entire case. In other words, the Court obtains jurisdiction over all the persons involved in the transaction. The seisin of the Court extends not only to the persons against whom the challan is submitted but to other persons who might appear implicated therein. A Court becomes seized of the case when for the first time it takes cognizance of an offence and subsequent to the initiation of judicial proceedings with reference to a particular person implicated therein, it exercises a power which it has by virtue of its being seized of the case relating to the criminal transaction in question. Such a power is based on the principle that a Court having seisin of the case relating to a criminal transaction is bound to see that justice is done, that the offender is brought to book. Such a power vested in every Court is recognised in various sections, for instance, sections 210, 227 and 237, etc., of the Code. Since no Court other than the one which already has seisin of the case relating to the transaction can proceed against such persons, therefore, law gives it the power to do so.

4. The ordinary rule is that when a Magistrate takes cognizance of an offence, he takes cognizance of the case as a whole, and is empowered to summon all persons against whom there appears to be any reason for their prosecution, even though their names are not mentioned for this purpose in the petition or complaint. A Court takes cognizance of an offence and not of an offender, therefore, when proceedings are commenced against a new accused by a Court having seisin of a case, it does not take cognizance of an offence.

5. The section (sic) only requires a report of the facts constituting an offence and that the opinion of the reporting officer is not material. A Magistrate may take cognizance on a report of the facts by a police officer but the opinion of the police officer is in no way binding on the Magistrate. Reliance is also placed by the learned counsel on A I R 1929 Pat. .514. The facts of that case are distinguishable and are not applicable to the present case. In that case a complaint was lodged by the police with regard to an alleged offence under section 379, P. P. C. An investigation was made and the police reported that the charge against the accused appeared to be false and that the complaint was made under section 379 on the ground that the complainant had some sort of grudge against the accused. On receipt of this report the Magistrate made an endorsement thereon:

"Falls under section 379. Action should be taken under section 211, I. P. C."

As a result a complaint under section 211 was ultimately lodged by the police with the Magistrate against the person who had made a complaint under section 379. The point raised in that case was that if cognizance was taken by the Magistrate under sub‑clause (c) of section 190, Cr. P. C. then it was necessary for the Magistrate to give the accused person the option which he was bound to do under section 191.

6. I am of the view that both the points raised by the learned counsel arc dealt with in the above discussion and as regards material before the Magistrate, the dying declaration, if genuine, is always considered in criminal trial of great importance and was sufficient for the Magistrate to act upon. This order shall not, however, reflect upon the value of the dying declaration in the trial of the case. The petition on these grounds is dismissed.

K. B. A. Petition dismissed.

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