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Criminal Revision No. 28 of 1966, decided on 5th April 1968.

S. 202-‑Private complaint for cognizable offence filed before Magistrate‑Magistrate after recording statement of complainant, sending complaint to Police for report under S. 202‑‑Order of Magistrate does not, in circum stances of case, debar Police from exercising their powers to arrest and investigate in regard to such complaint.

Abdul Haleem v. Raja Qurban Hussain and others P L D 1965 Lah. 570 fol.

Mrs. Sakina A. J. Durrani and another v. Mst. Aya Begum and State Criminal Revision No. 14 of 1962 of Quetta Circuit and Azizur Rahman and others v. The State and others P L D 1960 Dacca 631 not fol.

Basharatullah for Petitioners.

Muhammad Zafar for Respondent No. 1.

M. Haleem, Asstt. A.‑G. for the State.

Date of hearing : 5th April 1968.

On the 26th of April 1965, a complaint by Malik Ghulam Muhammad Khan, respondent No. 1, was filed against Mahmood and Mukhtar Ahmad, petitioners under sections 427, 448 and 451, P. P. C. before the Revenue Assistant and Magistrate 1st Class Quetta. On the 27^th of April 1965, the Magistrate recorded the statement of the complainant to the police for report under section 202, Cr. P. C. The police instead of submitting a report submitted a challan under sections 448 and 427, P. P. C. on the 3rd of July 1965, the Magistrate on receipt of the challan passed an order dated tile 14th of July 1965, summon ing the petitioners for the 22nd of July 1965. After the evidence of five prosecution witnesses had been recorded the petitioners filed a revision before the learned Sessions Judge, Quetta, against tile order of the Magistrate dated the 14th of July 1965. The learned Sessions Judge on the 24th of May 1961 dismissed the petition holding that the challan was to be taken as a report from the police. Against that order the petitioners have come up in revision to this Court.

2. It was contended on behalf of tile petitioners that the police was not competent to submit a challan in the hatter, when a private complaint had been referred for inquiry and report within the meaning of section 202, Cr. P. C., but only report, which was to be considered by the Magistrate and action taken either under section 203 or section 204 of the Code of Criminal Procedure. In support of his contention the learned counsel for the petitioners cited the case Mrs. Sakina A. J. Durrani and another v. Mst. Aya Begum and State (Criminal Revision No. 14 of 1962 of Quetta Circuit). In that case a private comp laint was filed against the two petitioners, who were husband and wife, by the husband's mother, namely, Ma. Aya Begum, respon dent No. 1, alleging that the two petitioners had committed theft of Rs. 20,500'00 from a nawar bed in her house where she had concealed the money after the death of her husband. The com plaint was filed on the 10th of February 1962, and the complainant was examined the same day under the provisions of section 200 of the Criminal Procedure Code. The next day the learned Magistrate referred the case to a police officer for enquiry and report. The police made certain recoveries from the house of the petitioners in Karachi and arrested the two accused of the 16th of February 1962 on a non‑bailable warrant issued by the trial Magistrate. The two petitioners were bailed out on the 20th of February 1962, and on the 23rd of February 1962, a challan was submitted, upon which the learned Magistrate issued process for the appearance of the petitioners. My learned brother Anwar‑ul‑Haq, J. vide his order dated the 2nd of August 1962 made the following observations:‑

"I am inclined to agree with the submissions made by Messrs Karam Illahi and Hanfi and consider that the use of the word challan' by the police officer, who has acted in accordance with the directions of the Magistrate made under section 200 of the Criminal Procedure Code, is misconceived and that in fact it is a report compiled after enquiry and investigation as required by section 202 of the Criminal Procedure Code. The only order that is required in the circumstances of the case is that this so called challan should be treated as a report submitted by the police officer under section 202 of the Criminal Procedure Code and the Magistrate should apply his mind to this report and decide whether he should act under section 203 or section 204 of the Criminal Procedure Code. I order accordingly. The process already issued by the Magistrate is quashed. The petition is accepted to this extent only."

The learned counsel for the petitioners also relied on the case Azizur Rahman and others v. The State and others (P L D 1960 Dacca 631) wherein it was observed :‑

"When a Magistrate receives a complaint and takes cognizance thereof under section 190 (a) of the Criminal Procedure Code, 1898 and then examines the complainant under section 200 of the Code then the only inquiry or investigation that he can order is one under section 202 and not under section 156 (3) of the Code. He may, if he wishes to direct the investigation under section 156 (3) of the Code, not take cognizance but send the Complaint direct to the police for police investigation; but where he has examined the complainant and taken cognizance, the investigation can only be under section 202 of tile Code and in those circumstances the submission of a charge‑sheet is without Jurisdiction for there must then be a report to the Magistrate who must himself dispose of the complaint under section 203 or section 204 of the Criminal Procedure Code, 1898.

3. The learned Assistant Advocate‑General, on the other hand, contended that all offence under section 448, P. P C. is a cogniz able case to the Police and as such the Magistrate s order under section 202, Cr. P. C. did not debar the police from exercising their general power to arrest and investigate in regard to the same matter, which formed the subject‑‑matter of the complaint. In support of his contention the learned Assistant Advocate‑General relied on the case Abdul Haleem v. Raja Qurban Husain and others (P L D 1965 Lah. 570) wherein it was observed;

"We may, however, make it clear that if a Magistrate send a cognizable case to the police to investigate under section 202, Cr. P. C., the police officer making investigation can arrest and send up a charge‑sheet. The Magistrate's order under this section does not debar the police front exercising their general powers to arrest and investigate in regard to the same matter as can form the subject of the complaint. In fact in such a case the police would be falling in their duty if they did not arrest an offender against whom a cognizable offence is made out. Much more so would this be the case where the Magistrate after recording the complaint finds that regular police investigation would be more suitable and intentionally keeps the complaint pending in order that the police may exercise their powers of investigation and arrest to dependently of the Magistrate."

Their Lordships based their view on cases Rashid Ahmad v. The Crown (I L R 14 Lah. 194), King‑Emperor v. Bhola Bhagat and others (A I R 1923 Pat. 547), Gopal Naick v Alagriisami Naick (131 I C 176) and Crown v. Ghulam Nabi Allah wadhayo (27 Sind L R 67). In Rashid Ahmad v. The Crown the relevant Portion, on which their Lordships relied on, is as follows ;

"I drink that the powers given to the police by section 156 are not affected when an order to investigate under section 202 is made; and though it is not open to the Magistrate when a complaint has been made to him, to direct the police to make a charge in the same case, it is open to the police to do so, if they think proper."

In King‑Emperor v. Bhola Bhagat and others the relevant portion on which their Lordships relied on, is as under: ‑

"But even if the order of the Magistrate was an order under section 202, Cr. P. C., I cannot see why the jurisdiction of the police to arrest and to send up a charge‑sheet was ousted. In practise, of course, the police would not ordinarily take independent action in respect of a complaint which has already been distrusted by the Magistrate, but to lay down the general proposition that a Magistrate's order under section 202, Cr. P. C. debars the police from exercising their powers of arrest and investigation, would, in my opinion, be neither expedient nor correct."

Since the aformentioned authority on which the learned As sistant Advocate‑General has relied is a Division Bench case, and the authorities on which the learned counsel for the petitioners has relied are Single Bench cases, I am bound to follow the former. I accordingly, find no merit in this revision, which is hereby dis missed.

Petition dismissed.

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