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Criminal Revision No. 656 of 1967, decided on 22nd November 1968.

Ss. 190(1)(c) & 191‑‑ Magistrate after taking cognizance of offence under S. 190(1)(c) omitting to inform accused that he was free to hale case transferred from his Court‑Subsequent proceedings against accused, held, to be illegal.

Abdus Sattar Molla v. The Crown P L D 1953 F C 145 rel.

S. M. Anwar for Petitioners.

M. Z. Babar Shoh for A.‑G. for the State.

The petitioners were named in the F. I. R. lodged on 24th of January 1965, as accused persons for the murder of Muhammad Zafarullah of Bhamba Khurd, Police Station Raiwind in the Tehsil of Qasur, District Lahore. The Police after investigation found that no case could be made out against the petitioners and, therefore, submitted a report to the Ilaqa Magistrate for their discharge. Simultaneously, they submitted a challan against another set of accused. The learned Magistrate on 21st of March 1966 discharged the present petitioners. He recorded the evidence of one Court‑witness on the same day and summoned the petitioners as accused‑persons in view of the evidence that he had recorded, although he had agreed with the police report discharging the petitioners. The entire evidence in this case was recorded. The evidence produced by the prosecution involved the other set of the accused other than the petitioners, but the three Court‑witnesses involved the petitioners. The learned Magistrate after an appraisal of evidence, discharged the petitioners on 4th of April 1966. A revision petition was filed in the Sessions Court and Ch. Ghulam Husain, the learned Additional Sessions Judge by his order dated 20th of May 196 7, set aside the order of discharge and directed that the petitioners be committed for trial upon the matter on record along with the three persons who had already been committed.

2. It is submitted by the learned counsel for the petitioners that Syed Nasir Ali Shah Magistrate section 30, had in the first instance agreed with the police and discharged the accused. He had summoned the petitioners after recording some evidence. He, therefore, according to the learned counsel took cognizance under section 190(1)(c) of the Criminal Procedure Code. It is urged that it was imperative for the learned Magistrate to have told the petitioners at that time that they were free to have the case transferred from his Court. This was not done. The learned counsel relies upon Abdus Sattar Molla v. The Crown (P L D 1953 F C 145) wherein it was held by majority that the trial is vitiated, if a person, after cognizance of the offence has been taken under section 190(1)(c) is not informed that he could claim to be tried by another Magistrate. The proceedings before Mr. Nasir Ali Shah are, therefore, entirely vitiated. In these circumstances, the direction of the learned Additional Sessions Judge to commit the petitioners to the Court of Sessions on the basis of the existing record is not warranted by law. The net result is that all proceedings held by Syed Nasir Ali Shah after summoning A the accused up till the date of their second discharge i.e. 4th of April 1966, are held to be illegal. The order of summoning them as accused persons cannot, however, be set aside. The successor of Syed Nasir Ali Shah may proceed to record evidence against the petitioners and may commit them to the Sessions if he finds that a case against the petitioners has been made out. The revision petition is accepted to this extent only.

Petition partly accepted.

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