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Criminal Appeal No. 22 of 1967, decided on 10th March 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 21st December 1965, in Criminal Revision No. 991 of 1965).

(a) Constitution of Pakistan (1962), Art. 58(3)‑Leave to appeal‑Granted by Supreme Court to consider whether Magistrate was entitled to take cognizance, under S. 190(6), Criminal Procedure Code (V of 1898), of case of accused shown in column 2 of challan, submitted under S. 173, Criminal Procedure Code (V of 1898).

(b) Criminal Procedure Code (V of 1898), S. 190(6) read with S. 173‑Magistrate may take cognizance under S. 190(6) of case of accused shown as innocent in column 2 of report submitted under S. 173. Held, that the action of the Magistrate in issuing summons to accused despite the fact that the investigating officer in his report under section 173, Cr. P. C. had placed their names in column 2 thereof was correct.

Under subsection (3) when it appears from the report forwarded under subsection (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) of section 173 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 proceeding against the accused, he must act under section 190 of the Code of Criminal Procedure.

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 Sardar All and others v. The State P. S. L. A. No. 66 of 1966 and Muhammad Nawaz Khan v. Noor Muhammad and others P L D 1967 Lah. 176 ref.

Masud Ahmad Khan, Advocate Supreme Court instructed by Ghulam Mohyuddin, Attorney for Appellants.

Raja Said Akbar, Advocate‑General West Pakistan (A. Waheed Khawaja, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing: 10th March 1967.

FAZLE‑AKBAR, J.‑

The question raised in this appeal, by special leave, is: whether a Magistrate can take cognizance of offence under section 190 (b) of the Code of Criminal Procedure as against those who, although they were mentioned in the F. I. R., were reported by the investigating officer to be innocent and placed in column No. 2 of his report. This question arises under the following circumstances.

A case under sections 302 and 307 read with section 34, P. P. C., was registered against four persons, namely, Muhammad Sharif, Muhammad Nawaz, Falak Sher and Abbas, for murder of one, Ghulam Muhammad, and attempted murder of one, Sawal. After investigation, the police found that there was no evidence against Falak Sher and Abbas and hence while sub mitting the challan only against Muhammad Sharif and Muhammad Nawaz placed the names of Falak Sher and Abbas in column 2 of the challan. The Magistrate, after perusal of the record and the police report, took cognisance of the case against all the four accused, including those whose names were shown in column 2. Falak Sher and Abbas then filed a revision petition in the High Court against the order of the Magistrate, but the same was dismissed. This Court granted them special' leave to appeal to consider whether the Magistrate was entitled to take cognisance of the case under clause (b) of section 190 if the Code of Criminal Procedure.

In our opinion, the action of the Magistrate in issuing summons to these appellants despite the fact that the investigating officer in his report under section 173, Cr. P. C. placed their names in column 2, was clearly correct. Section 173, Cr. P. C.1 is in these terms:‑'

"173.‑(1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police‑station shall‑

(a) forward to a Magistrate empowered to take cognizance of the offence on a police‑report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police‑station to make further investigation.

(3) Whenever it appears from a report forwarded under this section 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.

(4) . . . . . . . . .

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 section 3 a Magistrate may agree or may c 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 proceeding against the accused, he must act under section 190 of the Code of Criminal Procedure.

Section 190 provides that a Magistrate "may take cogni zance of any offence (a) upon a complaint, (b) upon a police report, or (c) upon information received by himself.

Now, the question is, if be disagrees with the report, can he take action under clause (k) 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 D 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 by 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 in a similar question, observed:‑

"Reference to section 173, Cr. P. C., which prescribes the details that must go into a police report of 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 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 correctly interpreted the meaning and scope of sections 173 and 190 of the Code of Criminal Procedure in Muhammad Naira: Khan v. Noor Muhammad and others (P L D 1967 Lah. 176).

For the reasons stated above, we see no ground for interference with the order of the High Court and accordingly dismiss this appeal.

A. H. Appeal

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