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Criminal Revision No. 881 of 1973.

-- S. 253 read with Ss. 173 & 190-Discharge of accused-Magistrate cancelling case registered on basis of police report under S. 173 read with S. 190, Cr. P. C.-Magistrate's order not an order of discharge of accused passed on merits after recording evidence-Order, held, could not bar subsequent prosecution of accused on basis of private complaint.

The Magistrate had not discharged the accused-petitioners on merits after recording any evidence, but had only cancelled the case registered at the instance of the respondent-complainant on the basis of the police report under section 173 read with section 190, Cr. P. C., it, therefore, could not operate as a bar to their subsequent prosecution on the basis of a private complainant. The assertion that the Magistrate concerned had taken into consideration, some factors, like absence of independent witnesses and the opinion of the Medical Superintendent about the nature of the injuries, while passing the order will not change the character of his order as the police had also based its recommendations on the same grounds, so it cannot be urged that it was an order on merits as neither any prosecution witness nor the Medical Superintendent had been examined by him in the case, even the delay in lodging the complaint could have been satisfactorily explained by the respondent in his evidence, if called upon to do so.

Wazir's case P L D 1962 Lab. 405; Muhammad Nawaz v. The Crown 1948 Cr. L J 774; Amir Ali's case P L D 1"68 Lab. 537; J. O. Boywala v. Sorab Rustamji Engineer A I R 1941 Bom. 294 and Atta Muhammad's case P L D 1969 Lab. 734 rel.

Mst. Tirathbai v. Mt. Sugnibal A I R 1929 Sind 61(1); Chellomal and others v. Kewalmal Jeramdas A I R 1939 Sind 38; Abut liossain Sana v. Suwalal Agarwala and another P L D 1962 S C 242 and State v. Syed Masood Ahmad 197 x P Cr. L J 1216 distinguished.

REFERENCE BY THE DISTRICT MAGISTRATE

There was a dispute between the parties over possession and partition of a house, as a result thereof a scuffle took place between them and a case F. I. R. No. 40S, dated 17-8-1971 was registered under sections 324, 148/149, P. P. C. against the respondents. As a counterblast the respondent got a case F. I. R. No. 410, dated 17-8-1971 registered at P. S. City Sargodha under section 324/148/149, P. P. C. Simple injuries were found on the persons of Bashir and Munir Ahmad whereas the injuries of Rashid Bibi and Allah Rakhi were kept under observation. Subsequently the Medical Superintendent, District Headquarters Hospital, Sargodha on re-examination declared the injuries as simple and further opined that the same appeared to have been caused by friendly hands. Primarily the local police vide Zimni No. 9 dated 25-10-1971 reported for the cancellation of case F. 1. R. No. 410 dated 7-8-1971 but the P. D. S. P. did not agree and ordered that the appellants (accused) should be challaned. Consequently, the appellants were summoned by the Court through non-bailable warrants of arrest. They were granted nail by the Court and continued attending the Court till 31-8-1972. Meanwhile the appellants applied to the Superintendent of Police, Sargodha for reinvestigation of the case. As a result thereof the S. H. O. City Sargodha reported again on 15-4-1972 for cancellation of the case to which the P. D. S. P. agreed. In his order dated 31-8-1972 Mr. Muhammad Anwar Khan Kiani, M- I. C., Sargodha has stated that he had examined the police file and no independent witness except the relatives of the complainant have corroborated the F. I. R. during investigation. Moreover the M. S. on re-examination of the injured P. Ws. found that the injuries which were caused by sharp-edged weapon were of friendly hands. Accordingly he discharged the accused (appellants) who were on bail from Court.

2. On 13-3-1973 the respondent Bashir Ahmad son of Abdul Hakim filed a complaint in the Court of Ch. Muhammad Sarwar, M. I. C., Sargodha against nine persons while three of them were not challaned by the police previously. In the said complaint the respondent Basbir Ahmad son of Abdul Hakim narrated his ignorance about the fate of challan case F. I. R. No. 410 dated 17-8-1971. He also concealed the fact regarding re-examination of the injured P. Ws. The Magistrate recorded the statement of the complainant on the same day i.e. 13-3-1973 and adjourned the case for 21-3-1973. The last evidence of 6th witness-Lady Doctor Miss Mumtaz Bhatti as recorded on 25-5-1973 and on the game day the Magistrate ordered that prima facie a case is made out against the accused under sections 325, 324/149, 148, P. P. C. and that they should be summoned for 6-6-1973. Accordingly all the accused persons including three ladies were summoned through an ordinary robkar wherein intimation was given to the accused to appear in the Court on 6-6-1973. The robkar was served on five out of 9 persons mentioned therein. On 6-6-1973 a revision petition was filed by the accused (appellants) on which parawise comments and record was summoned from the Court concerned for 13-6-1973. In his interim order dated 6-6-1973, Ch. Muhammad Sarwar, M. I. C. has recorded that none of the accused on whom service was effected appeared in his Court and the remaining accused who have also been reported to refuse the service should be summoned through non-bailable warrants of arrest for 3-7-1973.

On 7-6-1973 the appellants applied to this Court through their counsel that the execution of non-bailable warrants of arrest issued by City Magistrate may he suspended as they were present in the Court of District Magistrate, Sargodha on 6-5- 1973. The request was acceded to and the execution of warrants was suspended till further orders.

(i) Grounds for Reference.-That the impugned order of Ch. Muhammad Sarwar, M. I. C., Sargodha dated 25-5-1973 is against Law and he was not competent to revise the order of discharge dated 31-8-1972 passed by his predecessor Mr. Muhammad Anwar Khan Kiani and that order of discharge still holds good as it has not been set aside by any superior Court.

(ii) That Ch. Muhammad Sarwar, M. 1. C. did not apply his mind to the facts of the case properly. He did not examine the finding of the Investigating Officer, and opinion of Medical Superintendent. The order is, therefore, improper.

(iii) That Ch. Muhammad Sarwar, M. I. C. even did not care to see that the number of accused was nine in the complaint while in the previous challan the number was six.

(iv) The learned Magistrate did not appreciate the fact that the order of discharge was passed on merits and that the accused had been appearing before Mr. Muhammad Anwar Khan Kiani, M. I. C. prior to order of discharge.

ORDER OF THE HIGH COURT

MUHAMMAD MUNIR FARUQI, J.

-After having perused the record I am unable to accept the recommends Lion for quashment of the proceedings made by the learned District Magistrate in his reference under section 438, ,Cr. P. C. as the contention that the order dated 31st August 1972, of Mr. Muhammad Anwar Khan Kiani then Magistrate 1st Class, Sargodha, cancelling the case (F. I. R. No. 410 of 1971 of Police Station City Sargodha), In re: State v. Bashir Ahmad etc. and discharging the accused-petitioner having been passed on merits operated as a bar to the prosecution of the petitioners on the basis of a private complaint filed by the disgruntled complainant (respondent) is utterly erroneous and misconceived. In taking this view, reliance is placed on a Full Bench decision in Wazir's case P L D 1962 Lah. 405 ,wherein His Lordship observed as under :-

"Where a Magistrate has cancelled a case there is no occasion for the Sessions Judge to hold that the accused has been discharged or that consequently be has power to order a retrial. The accused can be discharged only if some evidence has been recorded. Such a case does not fall within the revisional jurisdiction of the Sessions Judge and any order for further inquiry would be set aside by the High Court."

The above case had likewise arisen out of a cross-firing between two parties resulting in murder of one person on one side and injuries to some on the other side. Consequently two counter-cases had been registered by the police one under sections 148-302/149, P. P. C, against the party of Karam Dad and the other under sections 168-307/149, P. P. C. against the party of Tikka Khan. After submission of incomplete challans the Deputy Superintendent of Police sent a report about the 2nd case that the prosecution case being discrepant the accused may be discharged and accepting it the Magistrate discharged the accused, i.e. the party of Tikka Khan.

2. The complainant (Karam Dad) went in revision to the Court of Sessions against this order contending that the Magistrate was not justified in discharging the accused without recording evidence as the challan bad been put in Court. From the other side it was urged that impugned order only amounted to cancellation of the case; it was, therefore, not revisable.

3. The learned Sessions Judge remanded the case for further enquiry tender section 436, Cr. P. C. observing that the order of discharge though passed on the recommendation of the Deputy Superintendent of Police but being based on merits i e. divergence in prosecution version it was . neither covered under section 173 of the Criminal Procedure Code nor was of an administrative character.

4. The accused-petitioners feeling aggrieved by this remand order questioned its correctness before the High Court through a petition under section 439 of the Criminal Procedure Code, which was placed before Kayani, Chief Justice, as he then was, who on the basis of the views expressed in Muhammad Nawaz v. The Crown AIR 1948 Cr. LJ 774 referred it to a Full Bench for decision on the following two points:-

(1) Whether when a challan is received by a Magistrate he takes. cognizance of the case

(2) Whether in the event of a second report by the police recommending cancellation of the case he can accept the report before he has started with the trial in the presence of the first challan.

The Full Bench replied in the affirmative on both these points resulting in the decision as reproduced above by me.

5. In accordance with this verdict of the Full Bench which has been persistently followed by this Court such orders are deemed to have been passed under section 173 read with section 190 of the Criminal Procedure code and amount only to an administrative order regarding the cancellation of the case and not to the discharge of the accused in judicial proceedings which could operate as a bar against their fresh prosecution.

In Amir Ali's case P L D 1968 Lah. 537 one of us following an Indian Authority J. O. Boywala v. Sohrab Rustamji Engineer A I R 1941 Bom. 294 was pleased to take a different view about the nature of such orders but had re-armed the: legal right of the informant whose case is cancelled under section 173, Cr. P. C. that he can seek his remedy by filing a complaint against the accused discharged under this order.

In the case in hand we are only concerned with the latter aspect and in the view that I have taken I am duly supported by this judgment. as well.

This Court has gone still further in the matter by holding that eve& a fresh investigation can be launched against a person who had been found innocent in an earlier enquiry by the police on a similar report. See Atta Muhammad's case P L D 1969 Lah. 734, Muhammad Hayat's case P L D 1970 Lah. 279 and Alam Din's case P L D 1973 Lah. 304.

6. Learned District Magistrate has relied on four authorities, namely, Mst. Tirathbai v. Mst. Sugnibai A I R 1929 Sind 61(1), Chellomal and others v. Kewalmal' Jeramdas A I R 1939 Sind 38, Abul Hossain Sana v. Suwalal Aggarwala and another P L D 1962 S C 242 and State v. Syed Masood Ahmad 1971 P Cr. L J 1216 which are clearly distinguishable from the. facts of the present case. In the first two cases the complaint on similar facts had already been dismissed under section 203, Cr. P. C. by a judicial' order passed by another Magistrate and entertainment of afresh complaint would, in fact, amount to re-opening of the case as in appeal, revision or a review petition, which was beyond his jurisdiction or scope of his. authority. These cases were, therefore, not applicable at all to this case.

7. In the third case too the discharge order had been passed under, ,section 253, Cr. P. C. holding that the charge was groundless. A pertinent remark of their Lordships in the body of this judgment is being reproduced below to indicate their viewpoint about it :-

"The difference between the view we are taking and the view which was taken in the Full Bench cases (of pre-Partition Indian Courts)' is not so great as it may at first sight appear. It had been accepted in these cases that if there has been a discharge, after hearing of evidence, there should not be a second prosecution and that is substantially the bass of this judgment."

This observation clearly envisaged a discharge order passed on merits under section 203/253, Cr. P. C. i.e. after taking cognizance and recording some evidence therein and not merely based on a perusal of the police report or for that matter the police file, as done in the present case.

8. In the fourth case State v. Syed Maqsood Ahmad even the enquiry had been taken in hand and of three witnesses, who appeared, one did not support the prosecution and the remaining two were given up, but the case was later withdrawn under section 494, P. P. C. resulting in the discharge of the accused under section 494(a), Cr. P. C. This case was likewise inapplicable to the facts of the present case.

9. As would appear from the relevant order itself the Magistrate had not discharged the accused-petitioners on merits after recording any evidence, but had only cancelled the case registered at the instance of the respondent-complainant on the basis of the police report under section 173 read with section 190, Cr. P. C., it, therefore, could not operate as a bar to their subsequent prosecution on the basis of a private complainant.

10. The assertion that the Magistrate concerned had taken into consideration, some factors, like absence of independent witnesses and the opinion of the Medical Superintendent about the nature of the injuries, while passing the order will not change the character of his order as the police had also based its recommendations on the same grounds, so it cannot be urged that it was an order on merits as neither any prosecu tion witness nor the Medical Superintendent had been examined by him in the case even the delay in lodging the complaint could have been satisfactorily explained by the respondent in his evidence, if called upon to do so.

11. As a result of this discussion I have no option, but to reject, this reference and remanding the case for further proceedings direct that it shall be disposed of simultaneously with the cross-case (F. I. R. No. 4088 of 1971).

S. A. H. Reference rejected.

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