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Criminal Revision No. 326 of 1971, decided on 13th April 1971

--- Ss. 173 & 190‑Police report‑Cognizance of offence‑Investigating Officer reporting no case against accused and showing him in Column No. 2 of challan Form‑Magistrate, held, nevertheless justified by law in summoning accused to stand trial.

J. D. Boywalla v. Sorab Rustom Ji Engineer A I 8.1941 Bom. 294 distinguished.

Falak Sher and another v. The State P L D 1967 S C 425 rel.

Muhammad Nawaz v. Noon Muhammad and others. P L D 1967 Lah. 176 ref.

A: K. Dogar for Petitioner.

A case was ‑registered ate Police Station Pakpattan on 8^th January : 1970, under., sections 148, 307 and 365 read with section 149 of the Pakistan Penal Code, against the petitioner and six others. After the completion of the investigation, challan was placed in the Court of Mian Abdul Samad, Section 30 Magistrate, Sahiwal, on 9th July 1970. The report made by the investigating officer under section 173 of the Code of Criminal Procedure revealed, that there was no case against the petitioner. He‑was shown in column No. 2:

2. While taking cognizance, the learned Magistrate summoned Muhammad Ali petitioner as an accused person. Dissatisfied with the order of the Magistrate Muhammad Ali filed revision petition in the Court of Mr. Muhammad Rafique Tarar; Sessions Judge, Sahiwal. The learned Sessions Judge finding no merit in the petition; dismissed it and hence this revision petition, which is directed against the order of the learned Sessions Judge, confirming that of the trial Magistrate.

3. I have heard learned counsel for the petitioner. He has raised a novel contention on the basis of the case of J. D. Boywalla v. Sorab Rustom Ji Engineer (A I R 1941 Bom. 294), ‑that the Magistrate could not act against the police report, without recording his opinion. He should have examined the report and should have recorded his opinion, and given reasons as to why, he was summoning the accused. The case relied upon by the learned counsel, to my mind, has no application to the facts of the case before me. What had happened in that case was that Mr. Boywalla took his car to the garage of Mr. Engineer to get it painted and repaired. When he got 'hack the car, he noticed that the battery had not been properly charged and the car would not start. There was an argument between the parties. Mr. Boywalla contended that he had got the battery recently charged. However, he was told by Mr. Engineer that the battery required to be re‑charged and that it had been re‑charged for him, for which he should pay an amount of Rs. 3. The payment was made and in spite of it, it was found that the car would not start. Mr. Engineer happened to be absent from his garage. So after waiting for him for an hour, Mr. Boywalla concluded that he had been cheated in respect of Rs. 3. He rushed to the police and lodged complaint. The matter was investigated and the police officer made a report to the Magistrate presumably under section 173 of the Code of Criminal Procedure, which inter alia indicated, that no offence had been disclosed against Mr. Engineer and that he be discharged and his bail bond be cancelled. On this, the learned Magistrate passed the following order :‑

"Accused discharged.' Bail bond cancelled."

4. Mr. Engineer then preferred a complaint against Mr. Boywalla under section 211 of the Penal Code. This matter went up to the High Court in revision and the contention raised before their Lordships was, that the complaint, if any, should have been lodged by the Magistrate, in view of the provisions of section 195‑B of the Cr. P. Code. The contention was upheld and the proceedings were quashed. This case, as I have stated above, had no application to the facts of the present case. Nobody has falsely charged any person with intent to cause him injury. In the case before me, on scanning the police report, the learned Magistrate partly disagreeing with it, summoned the accused person, who 'vas shown in column No. 2, in the final report. This he could do legally and if any authorities for the proposition are needed then I may quote the case of Falak Sher and another v. The State (P L D 1967 S C 425). Where their Lordships of the Supreme Court were pleased to a approve the action of the Magistrate in issuing summons to an accused person despite the fact that the investigating officer in his report under section 173 of the Code of Criminal Procedure, bad placed his name in column No. 2. , It was pointed out, that the Magistrate was not bound by the report submitted to him by the police under section 173 of the Code of Criminal Procedure. Their Lordships further observed :‑

"When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the con clusions 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."

5. In. the aforesaid case, their Lordships of the Supreme Court approved the decision in the case of Muhammad Nawaz v. Noor. Muhammad and others (P L D 1967 Lah. 176), decided by my learned brother Sardar Muhammad Iqbal, J. In respect to this case, the following observation was made ‑‑

"In conclusion, we may observe that this has been the consistent view of the High Court of West Pakistan and that Court has correctly interpreted the meaning and scope of sections' 173 and 190 of the Code of Criminal Procedure in Muhammad Nawaz Khan v. Noor Muhammad Khan and others."

6. For the aforesaid reasons, I may observe, that there is no illegality in‑the order of the Magistrate. It is not merely a routine or mechanical order. It is an order, which is justified by law and needs no interference. In the aforesaid view of the matter, the revision petition has no force and is dismissed in limine.

Petition dismissed.

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