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Criminal Miscellaneous No. 2066 of 1969, decided on 23rd September 1969.

---S. 561-A-Criminal trial-Quashment-None of several succeeding Magistrates taking up case appreciating evidence recorded by police during investigation, nor any of them aware of accused-petitioners having been placed in column 2 of challan Form-Petitioners tagged as accused without any judicial order-Magistrate directed to apply mind to fans of case independently and examine evidence recorded during police investigation before summoning petitioners.

In the present case there is no order which is indicative of the fact that any one of the Magistrates had appreciated the evidence recorded by the police during the investigation or that they were aware that accused-petitioners were placed in column 2 of the challan. As such, it is obvious that accused-petitioners were tagged as accused without any judicial order. The police report definitely exonerated them and there was no complaint either before any one of the Magistrates whereby they took cognizance of the case against them. In this case, the prose cution had made its position very clear that it did not treat accused-petitioners, now in column 2, as having any connexion with the commission of the offence, and a question arose for consideration, whether at all, these persons could be treated as accused persons without there being any order of a Court of competent jurisdiction. It would be seen that the Magistrate treated petitioners as accused without appreciating the evidence against them. There is no judicial order on the record. In this background it is abundantly clear that petitioners were treated as accused in a mechanical fashion without the application of mind on the part of any one of the Magistrates. The prosecution having placed accused-petitioners in column 2 of the challan, the committing Magistrate, who would now take cogniz ance of this case, was directed to apply his mind independently to the facts of the case, and examine the evidence recorded by the police during the investigation before he would summon petitioners as accused in this case. The committing Magistrate may or may not agree with the police report. In case he would agree with the final report he would cancel the case against them, otherwise he would pass an order treating, them as accused persons.

---S. 191-Magistrate taking cognizance of offence for limited purpose of committing for, trial-Not a trial Court--Provisions of S. 191 requiring information to be given to accused that he is entitled to have his case tried by another Magistrate-Do not come into play in such circumstances.

The principles underlying section 191, Cr. P. C., cannot be extended and made applicable to preliminary enquiry preparatory to commitment. In a case relating to an offence exclusively triable by a Court of Session, the application of section 191, Cr. P. C., is not attracted to the proceedings, because it is provided in the section itself that in 'case the accused or anyone of the accused, if there be more than one, objects to being tried by the Magistrate who has taken cogniz ance of an offence under clause (c) of subsection (1) of section 191, Cr. P. C., he can either transfer the case to another Magistrate or commit it to the Court of Session for trial. From the language of the section itself it is obvious that the Magistrate takes cognizance of an offence for the limited purpose of committing for trial and as an accused person in such a case is not to be tried by the Magistrate, the provisions in section 191, Cr. P. C., that the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Magistrate, do not come into play.

----S: 497(2)-Bail Some accused lodged in jail as undertrial prisoners for 1 years Accused-petitioners exonerated by police during investigation and placed in column 2 of challan Form-No judicial order on file summoning them as accused-Proceedings having been quashed by High Court, fresh inquiry likely to take time-No reasonable ground existing to show that accused petitioners committed offence of murder-Accused petitioners' case, held, fell under S. 497(2), Cr. P. C. to merit bail-Petitioners, however, concealing fact that their previous bail application had been refused by High Court and that that order was affirmed by Supreme Court Petitioners, held, did not come with clean hands and therefore not entitled to be enlarged on bail.

Ali Ahmad Anwar for Petitioners.

Dilawar Mahmood, A. A.-G. for the State.

This is a petition under section 561-A, Cr. P. C., for quashing of the proceedings in a case under sections 302/149 and 148, P P. C., pending against Ghulam Qadir, Hidayat and others in the Court of a Magistrate, First Class, Gujranwala.

2. The relevant facts are these. A case under sec tions 302/149 and 148, P. P. C., was registered at Police Station Nashehra Virkan, District Gujranwala, at the instance of Munshi Khan, wherein he named Muhammad Yusuf, Ghulam Qadir, Hamid. Ni,az, Bashir, Shabbir, Hidayat, Hussain, Niamat, Khalid, Rafique, Rakha and Ramzan alias Jehana as 'his assailants and that of Muhammad Sharif, Yusuf, Nawab, Inayat Ali, Maqbool and Hameed Ali. It was stated in the first information report that Ghulam Qadir and Yusuf were armed with guns, fired with their respective weapons and- the shots fired by ,Muhammad Yusuf hit Muhammad Yusuf son of Nizam Din and Sharif deceased. Muhammad Yusuf and Sharif deceased who had clubs in their hands inflicted injures to Rakha, Jehana, Hussain and Shabbir accused in their self-defence. In the course of investigation Ghulam Rasul accused lodged a counter complaint under sections 307/149 and 148, P. P. C., against Munshi Khan and others, but the investigating agency did not challan them for lack of evidence.

3. In the course of investigation of the main case State v. Yusuf and others the investigating officer placed Ghulam Qadir and Hidayat in column 2.of the final police report made under section 173, Cr. P.C. The challan was filed in the Court of Ch. Muhammad Hussain Akhtar, Magistrate First Class, Gujranwala, and the learned committing Magistrate supplied copies of the statements of the prosecution witnesses to all the accused including Ghulam Qadir and Hidayat. Later on, the file of the case was transferred to the Court of Mr. ivl. Siddique, a Section 30 Magistrate, Gujranwala, thereafter to the Court of Malik Muhammad Saeed, another Magistrate at Gujranwala. Finally, on 4th September 1968, the case was transferred to the file of Mr. Hamesh Gul, Magistrate First Class, Gujranwala. He adjourned the case for 16th September 1968, and summoned the prosecution evidence. He examined the entire prosecution evidence except Doctor Ashraf Ali, who is yet to be examined.

4. In this application under section 561-A, Cr. P. C. it has been stated that Ghulam Qadir and Hidayat were pronounced innocent by the police and that none of the Magistrates, before whom the case was presented, applied his mind to the facts "of the case and that there was no order summoning Ghulam Qadir and Hidayat as accused in this case.

5. In order to appreciate the contentions raised in - this petition I sent for the record of the case and examined Mr. Hamesh Gul, Magistrate First Class, to know whether he had applied his mind to the facts of the case and had summoned Ghulam Qadir and Hidayat as accused persons or was he aware that they were placed in column 2.of the challan. Mr. Hamesh Gul in his statement dated the aid of July 1969, stated that he did not see the police report., a' it was brought to his notice that Ghulam Qadir and Hidayat were placed in column 2 of the police challan. The stated that on the file there was no judicial order passed by any of the committing magistrates, who entertained this challan, summoning Ghulam Qadir and Hidayat as accused,

6. I have carefully gone through the record. There is no order which is indicative of the fact that any one of the Magistrates had appreciated the evidence recorded by the police during the investigation or that they were aware that Ghulam Qadi and Hidayat were placed in column 2 of the challan. As such, it is obvious that Ghulam Qadir and Hidayat were tagged as accused without any judicial order. The police report definitely exonerated them and there was no complaint either before any one of the Magistrates whereby they took cognizance of the case against them. In this case, the prosecution had made its position very clear that it did not treat Ghulam Qadir and Hidayat, no in column 2, as having any connexion with the commission of the offence, and a question arises for consideration, whether at all, these persons could be treated as accused persons without there being any order of a Court of competent jurisdiction. It would be seen that the learned Magistrate treated Ghulam Qadir and Hidayat as accused without appreciating the evidence against them. There is no judicial order on the record. In this background it is abundantly clear that Ghulam Qadir and Hidayat were treated as accused in a mechanical fashion without the application of mind on the part of any one of the Magistrates.

7. Learned counsel for the petitioners urged before me that it was incumbent upon the committing Magistrate to comply with the provisions of section 191, Cr. P. C., and to inform the accused that they were entitled to have the case tried by another Court. This contention is misconceived, firstly, because, there was no judicial order passed by anyone of the committing Magistrates and, as such, there was no occasion to apprise them that they were entitled to have the case heard by another Magistrate, and secondly, the principles underlying section 191, Cr. P. C., cannot be extended and made applicable to preliminary enquiry preparatory to commitment. In a case relating to an offence exclusively triable by a Court of Session, the application of section 191, Cr. P. C., is not attracted to the proceedings, because it is provided in the section itself that in case the accused or any one of the accused, if there be more than one, objects to being tried by the Magistrate who has taken cognizance of an offence under clause (c) of subsection (1) of section 191, Cr. P. C., he D can either transfer the case to another Magistrate or commit to the Court of Session for trial. From the language of the section itself it is obvious that the Magistrate takes cognizance of an offence for the limited purpose of committing for trial and as an accused person in such a case is not to be tried by the Magistrate, the provisions in section 191, Cr. P. C., that the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Magistrate, do not come into play.

8. For the foregoing discussion I quash the proceedings.

9. As observed in the earlier part of the order, the prosecution has placed Ghulam Qadir and Hidayat in. column 2 of the challan, therefore, the committing Magistrate, who would now take cognizance of this case, is directed to apply his mind independently to the facts of the case, examine the evidence recorded by the police during the investigation before he would summon Ghulam Qadir and Hidayat as accused in this case. It is well settled that the committing Magistrate may or may not agree with the police report in case he would agree with the final report C he would cancel the case against them, otherwise he would pass an order treating them as accused person.

10. The next question that arises is whether the accused should be admitted to bail. I am conscious of the fact that excepting Ghulam Qadir and Hidayat, the remaining accused are lodged as undertrial prisoners since April 1968, and as the proceedings have been quashed, there would be a fresh enquiry and that would take sometime. For this delay the defence cannot be blamed. It is also true that Ghulam Qadir and Hidayat have been exonerated by the police during the investigation as they were placed in column 2 of the police challan, and as there was no judicial order summoning them as D accused they were allowed bail. It can also be said that reasonable grounds did not exist to show that Ghulam Qadir and Hidayat had committed the offence of murder and their case fell under section 497 (2), Cr. P. C., to merit bail. At the same time, I am constrained to remark that the petitioners did not come with clean hands. In the petition they did not mention the fact that the bail was refused by this Court in Criminal Miscellaneous No. 3471 of 1968, and that order was affirmed by the Supreme Court of Pakistan.

Before admitting Criminal Miscellaneous No. 2066 of 1969, for quashing of the proceedings, the bail of the accused was dismissed on merits by my order dated the 14th April 1969. Ghulam Qadir and Hidayat were allowed bail in Cr. Misc. No. 3146 of 1969, when it was brought to my notice that there was- no judicial order summoning them as accused persons. It transpired during the hearing of these petitions that the application of the accused was declined by this Court and the Supreme Court.

11. I have given this matter my anxious consideration whether I should allow Ghulam Qadir 'and Hidayat to remain on bail or cancel it, but in view of the order of the Supreme Court, I recall my order dated 3rd June 1969, allowing bail to them. They should surrender to their bail bonds. The bail application of the remaining accused shall stand dismissed.

Office to send down the file forthwith. The committing Magistrate is directed to take up this case day to day and report the progress of the case to this Court. This also disposes of Cr. Misc. No. 3146 of 1969.

Order accordingly.

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