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Criminal Revision No. 618 of 1968, decided on 11 March. 1969.

S. 439 read with S. 190‑Persons named in F. I. R. but mentioned in column 2 of challan‑Complainant making applications before Inquiry Magistrate for summoning such persons as accused persons-- Magistrate refusing applications and in meantime committing accused to Sessions after completing inquiry‑Proper course open for complainant, in circumstances, was to file a complaint against such persons‑Complainant instead of making complaint, filing revision for setting aside orders of lower Courts and for directing Magistrate to take cognizance of matter under S. 190‑Held, Magistrate having already completed enquiry, it would be futile to ask Magistrate to apply his mind to case under S. 190 over again‑Petition dismissed.

Muhammad Yasin v. Abdur Rahim 1968 P Cr. L J 429 fol.

Hari Ballav Shaha Roy v. Gopi Ballav Shaha and others P L D 1959 S C (Pak.) 347; Mazharul Haque v. Ishaque Sardar and 15 others P L D 1962 S C 480; Ahmad Khan v. State P L D 1963 S C 45; Mehrab and another v. Crown A I R 1924 Sind 71 and Fatta and others v. The State A I R 1964 Pb. 351 ref.

A. G. Gondul for Petitioner.

Aftab Farakh with Azhar Hafiz for Respondents.

This revision petition is directed against the order of the learned Sessions Judge, Lyallpur, dated 11‑4‑1968, whereby he affirmed the order passed by the Additional District Magistrate Lyallpur dated 16‑3‑1968. The learned Magistrate rejected the application of the present petitioner to summon the' respondents as accused persons in the crime of double murder of Noora and Sardara.

2. Briefly, the facts of the case are that on 14‑9‑1967 as Chahwela, in Chak No. 368‑GB, within the precincts of Bhalak Police Station, District Lyallpur, Noora and Sardara were murdered. Jan Muhammad made a report at the police‑station at 12‑30 the same day accusing the respondents as culprit in the crime. The matter was investigated by the police. Some persons were challaned, but the names of the present respondent were placed in column No. 2 in the report under section 173, Cr. P. C. made on 19‑11‑1967. An application was submitted be fore the learned Additional District Magistrate for summoning the present respondents in the enquiry, but the learned Magistrate decided on 11‑1‑1968 only to proceed against the persons who were challaned. During the inquiry statements of the injured eye‑witnesses, Tufail (P. W. 1) Jan Muhammad (P. W. 7), Faiz Muhammad (P. W. 13), Bagh Ali (P. W. 14) and Said Muhammad (P. W. 17) were recorded by the enquiry Magistrate. An application was again made before the learned Additional District Magistrate for summoning the respondents as accused persons after the recording of the above‑mentioned evidence. This too was rejected by him on 16‑3‑1968. This revision petition before the Sessions Judge was also dismissed on 11‑4‑1968. Hence this petition was moved in this Court on 4‑7‑1968.

3. Learned counsel appearing on behalf of the petitioner submitted that the respondents have been named in the F. I. R. and they have been implicated by almost all the eye‑witnesses in the enquiry and it was incumbent upon the learned enquiry Magistrate to have summoned the respondents and committed them to stand their trial in the Court of Sessions. The learned Additional District Magistrate should not have appreciated the evidence and he was bound to summon the respondents as accused persons and commit them to stand their trial, as it is not the function of the Magistrate to decide about their innocence or the guilt. Even in a case with slightest possibility of conviction he had to commit the accused to the Court of Sessions. In support of his submissions, he cited Hari Ballav Shaha Roy v. Gopi Ballav Shaha and another (P L D 1959 S C (Pak.) 347); Mazharul Haque v. Ishaque Sardar and others (P L D 1962 S C 480) and Ahmad Khan v. State (P L D 1963 S C 45). There is' no dispute about the proposition that an enquiry Magistrate should not decide about the guilt of a person involved in a murder case, but in the instant case, the respondents were not facing enquiry before the learned Magistrate actually their names were placed in column No. 2 and the Magistrate refused to summon them under section 190, Cr. P. C. If the Magistrate has come to such a conclusion, the proper course open for the petitioner was to file complaint against the respondents. The petitioner kept quiet for three months after the dismissal of their revision by the Sessions Judge. They did not file any complaints and moved this Court three days before the order of commitment was passed by the learned Additional District Magistrate regarding the other persons against whom he conducted the enquiry. Learned counsel tried to persuade me to set aside the order of the Courts below and direct the Magistrate to take cognizance of the matter under section 190, Cr. P. C. He relied on Mehrab and others v. Crown (A I R 1924 Sind 71) and Fatta and others v. The State (A I R 1964 Pb. 351) in support of his submission. There can be no dispute that the Magistrate has the jurisdiction to issue process to persons whose names are mentioned in column No. 2 of the challan calling upon them to join the enquiry, but if he does not choose to do so, a remedy is available to the petitioner to file a complaint against those persons. Their Lordships of the Supreme Court in Muhammad Yasin v. Abdur Rahim (1968 P Cr. L J 429) in similar circumstances observed that if the complainant wishes to pursue the matter against the person against whom the Magistrate refused to take cognizance the proper course for him is to file a complaint against him on which action by a Magistrate is obligatory under the Criminal Procedure Code. Following the dictum of their Lordships of the Supreme Court and keeping in view of fact that the Inquiry Magistrate has already committed the other accused in the case to stand their trial before the Court of Sessions, it would be futile to ask him to apply his mind to the case under section 190, Cr. P. C. over again when he has already expressed his opinion. The position might have been different if he had not completed the inquiry. For the foregoing reasons this revision petition is dismissed. The petitioner may take the course open to him by filing a complaint against the respondent, if he so chooses.

Petition dismissed.

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