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Criminal Revision No. 96 of 1986, heard on 22nd March, 1986.

‑‑ Ss. 173 (3), 190, 163 & 167 ‑ Police Rules, 1934, Vol. III, Chap. XXIV, rr. 24.7 & 24.8‑Circumstances under which an order for cancellation of case can be passed by a Magistrate under S. 173, Cr. P. C.‑Law and procedure stated.

Where a sole accused or all the accused named in an F. I. R. are found innocent or their involvement appears to be suspect, discharge of such accused under subsection (3) of section 173 of the Code of Criminal Procedure is sought by the police from the Magistrate, together with an order for the cancellation of the case. The discharge of an accused under this subsection is not a discharge after some evidence is recorded. but one discharging the accused from his bail bond, with ‑any incidental order or direction that may be necessary. The cancellation of the case obviously is sought on the ground that the information or other intelligence recorded under section 154 of the Code has been found to be false or that the accused are not involved in the offence imputed to them or that the case is one which is non‑cognizable and cannot be investigated without the permission 6f a Magistrate or that the matter is of a civil nature. In such a case, the F. I. R. and other papers are sent with a final report to the Magistrate, where the sole accused or all the accused are not only discharged from their bonds, in accordance with the procedure prescribed under section 173(3) of the Code, but the case is also cancelled by the Magistrate, by .virtue of rule 24.7 of the Police Rules, Volume III, Chapter XXIV.

Strictly, there is no power for the cancellation of a case in the Code of Criminal Procedure. Such power of cancellation however may be treated as inherent in section 173, read with section 190 of the Code, though the language of subsection (3) of section 173 does not directly refer to the matter. Where such order of cancellation is passed, the Station Mouse Officer of the police station concerned formally cancels the F. I. R. from his register by drawing a red line across the page, noting the name of the Magistrate cancelling the case with the number and date of his order. In such cases, where the whole case is cancelled, the principle that the police shall not reopen the case for fresh investigation, without formally calling for the revocation of the Magistrate's order, applies.

But then a question arises as to what is the legal position where some of the accused named in the F. 1. R. are found innocent, whose names are placed in column No. 2 of the challan, and the rest guilty, whose names are placed in column No. 3 and the Magistrate discharges those who are found innocent by holding that the case against them stands cancelled. Can it be legally said that the case stands cancelled against them. A case which is exclusively triable by the Sessions, is one which the Magistrate takes cognizance for the limited purpose of examining and ascertaining whether it is one which he is required to send to the Court of Session for trial or one which he can proceed to try himself.

Under section 190(3) Cr. P. C. the Magistrate takes cognizance of the offence and not the offender.

The differing situations in which a case could be cancelled, clearly envisaged that in fact there was no cognizable case left to be investigated or one which could go for trial.

It has to be noted that where within the ambit of section 173, Cr. P. C. an accused is not proceeded against or discharged for want of material or evidence against him, the F. I. R. of the case remain; intact and reinves tigation of it or further investigation may very much be conducive to the detection of the crime to the tracing of the criminals and to the further progress in the case. The situation is very different where the matter which is ini tially, taken to be a cognizable case is found not a case at all or in any case, a matter which is non‑cognizable. In such a situation where the order of the Magistrate concurring with the recommendation of the police supervenes, the authority to reinvestigate does not exist, because there is no cognizable case to be investigated. For investigating a matter of civil nature or a non‑cognizable case the permission of the Magistrate is sine qua non, without which the proceedings cannot take place at the sweet will of the police.

Thus, in a case exclusively triable by the Sessions Court, where only some of the accused named in the F. I. R. are found innocent, but not all, they may be got discharged through the formal order of a Magistrate, on a report submitted by the police in that respect where the police opined that no offence stands committed by them, during the course of investigation. under section 63 read with section 167 of the Code of Criminal Procedure, or after investigation or reinvestigation is over, when the final report is submitted under section 173, Cr. P. C,

Even when the Magistrate takes cognizance, but before commencing trial, an accused can be discharged or the whole case cancelled, because the power is derivable partly from section 190, Cr. P. C. Generally, the consideration of the report under section 173, Cr. P. C. and the decision to start proceedings, that is to say, to take cognizance of the case under section 190, are simultaneous unless the Magistrate for some reason postpones the latter, e. g. to await the result of a fresh investigation ordered or to await the sanction required from Government to prosecute an accused, Since the two acts usually go together and a razor's margin of time separates them, at the time of taking cognizance also the Magistrate is not debarred from discharging an accused or cancelling the whole case. Basically, it is in the hands of the police to secure the discharge of an accused from a case, through the order of a Magistrate, and thus relieve him from the burden of joining any further investigation or facing any inquiry or trial, or to place his name in column No. .2 of the challan and to leave it to the Session, where his case will ulti mately be transferred, to decide whether to discharge him, or to summon him, for the opinion of the police is not binding on the Court and the Court can summon an accused whose name is placed in column No. 2, if the material on the record justifies such an order. But in all such cases, no order is called for cancelling the case qua the accused who is discharged, for cancelling the case involves cancelling the F. I. R. which is not possible. Thus, in a case where some, but not all, of the accused named are found innocent and are got discharged, the said order cannot be impliedly treated as cancelling the case qua them within the meaning of rule 24.7 of the Police Rules. Such accused must be allowed to be treated as discharged i. e. discharged from their bail bonds, that is to say, relieved from their burden of joining investigation, till such time that such order is reviewed or from facing inquiry or trial, till such time that they are summoned to do so on a private complaint, which is generally after an inquiry or investiga tion is held or in a Sate case, after some evidence is recorded and material appears therefrom, justifying such an order.

Wazir's case P L D 1962 Lah. 405 ; Din Muhammad Shakir's case P L D 1977 Lah. 180 ; Bashir Ahmad's case P L D 1980 Lah. 28; Asghar Ali's case 1983 P Cr. L J 2187 ; Mehdi Hussain Shah's case 1983 P. Cr. L J 1601 ; Bahadur's case P L D 198.5 S C 62 and Mehr Khan v. Yaqub Khan 1981 S C M R 267 ref.

S. 202 ‑Private complaint in respect of a case exclusively triable by a Court of Session‑How processed‑‑Court of Session can summon an accused, who has been earlier discharged, if during course of trial, it finds material against him showing his involvement in any of offence imputed to him ‑Material or evidence on which Court of Session can summon such accused, illustrated‑Duty of Court in such cases also indicated.‑[Complaint].

Where a private complaint is filed in respect of a case exclusively triable by a Court of Session, the same is processed under Chapter XVI, where the Court of Session, after examining the complainant, can either inquire into the case itself or direct an inquiry or investigation to be made by a police officer, or such other person as it thinks fit, or direct an investigation to be made specifically by a Magistrate subordinate to it; for the purpose of ascertaining the truth or falsehood of the complaint, and, after considering the statement of the complainant and the result of the investigation or inquiry, if any under section 202, Cr. P. C, there is in its judgment sufficient grounds for proceeding, it can summon such accused to face trial. Each of tile courses open under section 2ti2 is not mutually exclusive, but may be resorted to one after the other or even concurrently. In the inquiry conducted under section 202, ail accused has no locus standi as a party, though he may attend and watch proceedings, no right to be represented by a counsel, no right to cross‑examine the witnesses of the complainant, no right to call evidence in his defence and no right to explain the circumstances appearing in the evidence against him. However, in the investigation, conducted by a police officer or a Magistrate under section 202, he has the right of asserting and proving his evidence. In investigation, the case of all the parties would reopen fully, leaving all the parties to prove their respective cases by producing their witnesses and satisfying the Investigating Officer or Magistrate as regards the truth of their version. Between tile two, the direction for investigation would appear to be more appropriate and proper where the Court considers the same absolutely necessary, for example where it feels that the defence of some of the accused was not properly examined or facts or circumstances which should have been looked into were totally ignored. The addition of subsection (2) to section 202 of the Code is specifically intended to meet this requirement and Courts of Session should not be unmindful of its importance. But an order for investigation should be avoided where the accused are police officers, or belong to the police force, or where the offence has been committed in connivance with any member of the police force, for in such a case such an order would be undesirable in the public interest. Looking at the provisions of section 202 from all angles, in the event of an inquiry, the person conducting the inquiry should not only record the evidence of witnesses produced by the complainant, but should also examine the Investigating Officer, or, in the alternative, call for and peruse the Ziminis, with his assistance, to inquire into the reasons and circumstances which may have weighed with him in holding some of the accused, whose names he has placed in column No. 2, as innocent and to examine the nature of the evidence produced by such accused in their defence. Some reference of this evidence or examination should appear in the inquiry report, in defence to the case of the accused who have been found innocent, for without it the report would be indeed unfair. Similarly, in the event of an investigation under section 202, the person conducting the investigation should apply his mind to the whole file of the case, including the statements of the witnesses produced by the complainant and by any of the accused, recorded under section 161, and witnesses which may freshly be offered for examination, and all other relevant facts and circumstances as may appear on the record or be brought or produced before him, to determine, whether, after keeping in view both the material produced by the complainant and the accused; a prima face case appears against all or any of the accused named in the private complaint, reasonably showing their involvement in the offences imputed to them, which, in fairness to both the parties, should go for trial and against whom the defence offered cannot be treated as unequivo cally justifying the displacement of the complainant's case. Unless proper safeguards are provided to the accused to enable him to produce his defence, during investigation, or to have the material relating to the same fully brought to the attention of or considered by the inquiry officer, during the inquiry, a fair and equitable compliance of section 202 of the Code cannot be said to have been made. Since many years, the procedure adopted by the inquiry officer has shown scant regard for the accused's defence. Courts have permitted truth to be sacrificed at the alter of procedure, by avoiding to record or consider any evidence or material that may prejudice the complainants' case. According to the principles of Islamic justice, truth cannot be permitted to be stifled in any manner, least of all in proceedings which are intended to determine it. With the present shift in thinking, Courts must change their attitude and give a fair share of attention to the accused's defence, so that truth is permitted to freely surface and justice is done to both sides freely and fairly, (pp. 267, 2681)

The question that arises is whether a Court of Session can summon an accused, who has been earlier discharged, if during the course of trial, it finds material against him showing his involvement in any of the offences imputed to, trim and, if so, on what material or evidence. The answer is obviously in the affirmative. The proceedings under Chapter XVI are no higher than those under Chapter XXII‑A. If in proceedings under Chapter XXII‑A, the Court of Session considers, on the basis of evidence recorded, that there are sufficient grounds for proceeding against a person who is discharged, it should have the right to summon him. How much evidence should be recorded would depend upon the facts of each case. No hard and fast rule can be laid down in this respect. Since in proceedings under Chapter XVI, the complainant's witnesses are not liable for cross‑examination and the accused need not produce his defence, a Court of Session, when starting a trial, may feel tempted, in order to determine whether an accused discharged by a Magistrate should be summoned, to first frame a charge against the accused named in column No. 3 and perhaps also those named in column No. 2 (who have not been discharged by the Magistrate) rind record the examination‑in‑chief of a number of witnesses, reserving their cross‑examination to a future date, and then, finding sufficient grounds to summon the accused who have been discharged, but this procedure would be highly irregular, if not illegal. On principle, once the Court of Session has started a trial, it must record evidence as in a trial and not adopt a procedure akin to an inquiry. Any tendency to adopt the procedure of an inquiry would be fraught with danger, as it would induce the Court to record minimal evidence, which it would not otherwise do, if it were holding a proper inquiry itself and, worst of all, it would induce complainants in future not to file private complaints, but to take advantage of such summary procedure provided by the trial Court. 'she advantage and protection gained by an accused who has been discharged, after leading convincing evidence before the police during investigation, should be given the respect it deserves and should not be allowed to be lightly disturbed.

Mir Fatehkhan Mir Pirbuxkhan v. Emperor A I R 1942 Sind 161 mentioned.

State v. Muhammad Usman P L D 1975 Kar. 190 ref.

‑‑ Ss. 202, 173 & 439‑Discharge of accused by Magistrate‑Private complaint‑Sessions Court having hardly allowed examination‑in chief of prosecution witness/private complainant, when it summoned accused persons to face trial‑‑Sessions Court, held, would have allowed examination‑in‑chief and completed cross‑examination of complainant/prosecution witness and examination of further witnesses‑‑Evidence of a witness at trial without his cross‑examination, being no evidence, order summoning accused persons to face their trial in circumstances was set aside in revision.

Yahya Bakhtlar v. The State P L D 1983 S C 291 ref.

‑‑‑ Ss. 173 & 202‑Discharge of accused by Magistrate‑Private complaint‑Sessions Judge summoned all accused persons to face trial after deciding to take complaint case first‑Complainant sub sequently withdrew his private complaint on assumption that order summoning accused persons held field‑Successor Sessions Judge issued notices to parties for rehearing and after rehearing recalled, his predecessor's order summoning accused persons to face trial Successor Sessions Judge, before recalling his predecessor's order summoning all accused persons to face trial, held, should have formally given notice to complainant as to whether he desired his complaint to be restored‑Fact that successor Sessions Judge did not give such notice to complainant clearly nullified his order- Order of Sessions Judge, therefore, were liable to be set aside.

‑‑ Ss. 173 & 202‑Discharge of accused by Magistrate‑Private complaint‑Court to compel aggrieved complainant to file private complaint where accused was discharged by' Magistrate‑When a private complaint is filed, evidence of complainant is to be properly recorded in the inquiry‑Where, in trial proceedings, an attempt is made to search for evidence for a discharged accused to be summoned, tendency of recording minimal evidence is strongly present, which may corrupt, if not nullify, the proceedings.‑[Complaint].

Kh. Sultan Ahmad for Petitioners,

R. A. swan for Respondent.

Muhammad Ashraf Khan for the State.

Date of hearing : 22nd March, 1986.

This is a revision petition filed by Muhammad Ibrahim and others, petitioners Nos. 1 to 14 against the order of an Additional Sessions Judge of Kasur dated 18‑2‑1986 recording the examination‑in‑chief of Qudrat Ullah Ruddy in the State case 'State v. Akbar Ali and others' and summoning Muhammad Ibrahim and others, petitioners Nos, 1 to 14, alongwith others to face trial under section 102/307/148/149, P. P. C. in respect of the murders of Fateh Muhammad and seven others and for attempt on the lives of Qudrat Ullah Ruddy P. W. and others.

2. The brief facts of the case are that on 12‑10‑1982, Qudrat Ullah Ruddy, complainant P. W. 1, registered an F. 1. R. against Muhammad Ibrahim and others, petitioners Nos. 1 to 14, and ten others under section 302/307/148/149, . P. P. C. in respect of the murders of Fateh Muhammad and seven others and for attempt on the lives of Qudrat Ullah Ruddy P. W. and others. Petitioners Nos. 1 to 14 and three others were found innocent during the investigation. whereupon they were got discharged from a Magistrate on 30‑12‑1982. It appears that a Record investigation was ordered, when three snore accused were found ‑ innocent, but they were not got discharged from a Magistrate. The anal, outcome of both the investigations was that four persons, who were originally named in the F. I. R. and two, who were not so named, were found to be guilty of the offences relating to the murders in question and a challan was ultimately filed against the said six parsons on 20‑2‑1963 and the remaining twenty persons named as accused in, the F. I. R. were placed in column No. 2. On.5‑5‑1983, Qudrat Ullah Ruddy, complainant P. W. 1, filed a private complaint against petitioners Nos. 1 to 14 and ten others, who were all named in the F. I. R. This private complaint was sent to the Sessions by the Ilaqa Magistrate alongwith the State case. Before the inquiry could proceed on the private complaint, the State case was summoned by the Military Court for determination whether the same should be tried by a Military Court. Ultimately, the file was sent back for trial by the regular Court. On 4‑12‑1984, both the cases were ordered to be placed before a learned Additional Sessions Judge on 5‑12‑1984, Mr. Javed Iqbat, Additional Sessions Judge, summoned all the twenty‑six persons to face trial. On 22‑12‑19ts4, petitioners Nos. 1 to 14 and one other made an application to the learned Additional Sessions Judge praying that as they had been got discharged from a Magistrate, they could not be summoned. On 19‑3‑1985, the learned Additional Sessions Judge held that since the private complaint case would have to be taken up' first for trial, it would not be proper for him to decide that application. He, therefor, adjourned the application sine die, holding that the petitioners could be summoned subsequently if the State case was taken up later. Mr. Javed Iqbal, Additional Sessions Judge, having been transferred, Mr. Muhammad Ashrat Butt, Additional Sessions Judge, then took over the case. On 22‑9‑1985, Qudrat Ullah Ruddy, complainant, withdrew his private complaint. The new Additional Sessions Judge issued notices to the parties for re‑hearing of .the petitioners' application dated 22‑12‑1984 and on 12‑1‑1986 he recalled his pre decessor's order dated 5‑12‑1984, holding that if, after recording some evidence in the State case, he came to the conclusion that there was material against the petitioners, he would summon them. On 18‑2‑1986, the State case was taken up and the charge was framed against the six accused named in column No. 3 of the challan. The evidence of Qudrat Ullah Ruddy P. W. 1 was recorded partially, but before the examination‑in. chief could be concluded, the Public Prosecutor filed a petition praying that petitioners Nos. 1 to 14 and nine others (one accused having died) be summoned to face their trial, which prayer was allowed. The petitioners being aggrieved by the said order, preferred a revision petition, which is now before me for disposal.

3. On behalf of the petitioners it is submitted that as they were got discharged by the police through the order of a Magistrate, their discharge order amounts to the cancellation of the case against them and the learned trial Judge, therefore, was not justified in summoning the petitioners along. with others to face trial. In this connection it is submitted that as a Court of Session takes cognizance of a case only when the same is sent up to it for trial under section 190(3), Cr. P. C. by the Magistrate and the discharge order passed in their favour by the Magistrate tantamounts to the, cancellation of the case qua them, no case against the petitioners can be stated to have been sent up to the Court of Session. It is next submitted that as the learned Additional Sessions Judge did not record the complete examination‑in‑chief of Qudrat Ullah Ruddy complainant P. W. 1 or permit him to be cross‑examined before summoning the petitioners and three others to face their trial, the order summoning the petitioners was illegal and void. It is further submitted that the private complaint lodged by Qudrat Ullah Ruddy complainant P. W. 1 is legally still pending and should not have been allowed to be withdrawn, as the law does not provide for any such withdrawal and the order of the learned Additional Sessions Judge dated 22‑9‑1985 is void and a nullity.

4. Learned counsel for the complainant and the State submit that the order of discharge of the petitioners and three others passed by the Magistrate on 30‑12‑1982 did not amount to the cancellation of the case qua them and that it is only when all the accused named in a case are discharged and the police sends up the case for total cancellation, that it can be said that a case stands cancelled. In this connection it is urged that a case cannot be permitted to be cancelled qua some accused and allowed to proceed qua the rest. As regards the next submission, it is submitted that the Additional Sessions Judge had the power to summon the petitioners and the three others, who were earlier discharged, merely by examining the challan and the papers that were sent up with it, including police file, and hearing the arguments in the matter, and that it was not necessary for him to have recorded even the partial statement of Qudrat Ullah Ruddy complainant P. W. 1. It is urged that since the learned Judge erred by assuming that the order of discharge amounted to the cancellation of the case qua the petitioners and others, he recorded the evidence of the said complainant to determine whether material was available in the case against the petitioners and others to permit him to summon them and, having found such material, he legally summoned them to face their trial. With regard to the last contention, the learned counsel for the complainant and the State accept the legal proposition stated by the learned counsel for the petitioners and also submit, in the alternative, that in case this Court disagrees with the legal proposition stated, that they have no objection to the order of 22‑9‑1985 being set aside, as the private complaint was withdrawn after the Court had passed its order of 5‑12‑1984 summoning the petitioners and others to face their trial and that when the Court withdrew this order on 12‑1‑1986, it should have given notice to the complainant to show cause whether he desired the order of 22‑9‑1985 to be set aside and that of 5‑12‑1984 to be restored. In this connection it is also submitted that the complainant erroneously withdrew his complaint on 22‑9‑1985, not realizing that the order of 19‑3‑1985 had been passed.

5. The main question that arises in this case is under what circum stances an order for the cancellation of a case can be passed by a Magistrate under section 173 of the Code of Criminal Procedure.

6. Where a sole accused or all the accused named in an F. I. R. are, found innocent or their involvement appears to be suspect, discharge of such accused under subsection (3). of section 173 of the Code of Criminal Procedure is sought by the police from the Magistrate, together with an order for the cancellation of the case. The discharge of an accused under this subsection is not a discharge after some evidence is recorded, but one discharging the accused from his bail bond. with any incidental's order or direction that may be necessary. The cancellation of the case obviously is sought on the ground that the information or other intelligence recorded under section 154 of the Code had been found to be false or that the accused are not involved in the offences imputed to them o that the case is one which is non‑cognizable and cannot he investigated without the permission of a Magistrate or that the matter is of a civil nature. In such a case, the F. I. R. and other papers are sent with a final report to the Magistrate, where the sole accused or all the accused are not only discharged from their bonds, in accordance with the procedure prescribed under section 173(3) of the Code, but the case is also cancelled by the Magistrate, by virtue of rule 24.7 of the Police Rules, Volume III, Chapter XXIV. For facility of reference, the text of rules 24.7 and 24.8 may be reproduced hereunder

"Rule 24.7. Unless the Investigation of a case is transferred to another police station or district, no first information report can be cancelled without the orders of a Magistrate of a 1st Class.

When information or other intelligence is recorded under section 154, Criminal Procedure Code, and, after investigation, is found to be maliciously false or false owing to mistake of law or fact or to be non‑cognizable or matte; for a civil suit, the Superintendent shall send the first information report and any other papers on record in the case with the final report to a Magistrate having jurisdiction, and being a Magistrate of the first class, for order of cancellation. On receipt of such an order the officer‑in‑charge of the police station shall cancel the first information report by drawing a red line across the page noting the name of the Magistrate cancelling the, case with number and date of order. He shall then return the original order to the Superintendent's Office to be filed with the record of the case,

24.8.‑(1) Each Superintendent shall maintain a register of cognizable offences in Form 24.8(1), styled the English Register of Cognizable Offences.' It shall be sent on each working day to the District Magistrate when such officer is at the district headquarters.

(2) The serial number in column one shall commence and end with the calendar year. Cases cancelled or transferred shall be erased by ruling a red line through them, and shall, at the end of the year, be deducted from the total."

Strictly, there is no power for the cancellation of a case in the Code of Criminal Procedure. This omission, however, has been offset by a Full Bench decision of this Court in Wazir's case (P L D 1962 Lah. 405), which has held that such power of cancellation may be treated as inherent in section 173, read with section 190 of the Code, though the language of subsection (3) of section 173 does not directly refer to the matter. Where such order of cancellation) is passed, the Station House Officer of the police station concerned formally cancels the F. I. R. from his register by drawing a red line across the page, noting the name of the Magistrate cancelling the case with the number, and date of his order. In such cases, where the whole case is canncelled, the principle that the police shall not reopen the case for fresh investigation, without formally calling for the revocation of the Magistrate's order, applies. Din Muhammad Shakir's case (P L D 1977 Lah. 180), Bashir Ahmad's case (P L D 1980 Lah. 28), Asghar Ali's case (1983 P Cr. L J 2187), Mehdi Hussain Shah's case (1983 P Cr. L J 1601) and Bahadur's case (P L D 1985 S C 62) may be cited in this respect. In all these cases, the sole accused or all the accused named in the F. I. R. were discharged from their bail bonds and the cases were cancelled by the Magistrate on the report of the police.

7. But then a question arises as to what is the legal position where some of the accused named in the F. I. R. are found innocent, whose names are placed in column No. 2 of the challan, and the rest guilty, whose names are placed In column No. 3, and the Magistrate discharges those who are found innocent by holding that the case against them stands cancelled. Can it be le rally said that the case stands cancelled against them. A case which is exclusively triable by the Sessions, is one which the Magistrate takes cognizance for the limited purpose of examining and ascertaining whether it is one which he is required to send to the Court of Session for trial or one which he can proceed to try himself, (See Mehr Khan v. Yaqub Khan (1981 S C M R 267)). Under section 190(3) the Magistrate takes cognizance of the offence and not the offender. This Court in Din Muhammad Shakir's case (P L D 1977 Lah. 180) had the opportunity of examining the circumstances in which a case could be cancelled, where Shafiur Rahman, J., held that the differing situations, some of which he stated, in which a case could be cancelled, p clearly envisaged that in fact there was no cognizable case left to be investi gated or one which could go for trial. In dealing with a case where some of the accused were held innocent, the learned Judge observed :‑‑

"It has to be noted that where within the ambit of section 173, Cr. P. C. an accused is not proceeded against or discharged for want of material or evidence against him, the F. I. R. of the case remain intact and reinvestigation of it or further investigation may very much be conducive to the detection of the crime, to the tracing of the criminals and to the further progress in the case. The situation is very different where the matter which is initially. taken to be a cognizable, case is found not a case at all or in any case, a matter , which is non‑cognizable. In such a situation where the order of the Magistrate concurring with the recommendation of the police super venes, the authority to reinvestigate does not exist, because there is no cognizable case to be investigated. For investigating a matter of civil nature or a non‑cognizable case the permission of the Magistrate is sine qua non, without which the proceedings cannot take place at the sweet will of the police."

Thus, in a case exclusively triable by the Sessions Court, where only some of the accused named in the F. I. R. are found innocent, but not all, they may be got discharged through the formal order of a Magistrate, on a report submitted by the police in that respect, where the police opine that no offence stands committed by them, during the course of investigation, under section 63 read with section 167 of the Code of Criminal Procedure, or after investigation or reinvestigation is over, when the final report is submitted tinder section 173. In Waris's case one of the questions referred to the Full Bench was whether a Magistrate could accept a second report under section 173 calling for the discharge of an accused or for the cancellation of the case, before he had started with the trial in pursuance of the first challan, which the Full Bench answered by holding that such power was inherent in section 173 read with section 190 of the Code, though the language of subsection (3) of section 173 did not directly apply to the case. The effect of this decision is that even when the Magistrate takes cognizance, but before commencing trial, an accused can be discharg e ed or the whole case cancelled, because the power is derivable partly from section 190. Generally, the consideration of the report under section 173 and the decision to start proceedings, that is to say, to take cognizance of the case under section 190, are simultaneous, unless the Magistrate for some reason postpones the latter, e.g. to await the result of a fresh investi gation ordered, or to await the sanction required from Government to prosecute an accused. Since the two acts usually go together and a razor's margin of time separates them at the time of taking cognizance also the Magistrate is not debarred from discharging an accused or cancelling the whole case. Basically, it is in the hands of the police to secure the discharge of an accused from a case, through the order of a Magistrate, and thus relieve him from the burden of joining any further investigation or facing any inquiry or trial, or to place his name in column No. 2 of the challan and to leave it to the Sessions, where his case will ultimately bed transferred, to decide whether to discharge him, or to summon him, for the opinion of the police is not binding on the Court and the Court can summon an accused whose name is placed in column No. 2, if the material on the record justifies such an order. But in all such cases, no order is called for cancelling the case qua the accused who is discharged, for cancel ling the case involves cancelling the F. I. R., which is not possible. Thus, in a case where some, but not all, of the accused named are found innocent and are got discharged, the said order cannot be impliedly treated as can celling the case qua them within the meaning of rule 24.7 of the Police Rules. Such accused must be allowed to be treated as discharged i.e. discharged from their bail bonds, that is to say,, relieved from their burden of joining investigation, till such time that such order is reviewed, or from facing inquiry or trial, till such time that they are summoned to do so on a private complaint, which is generally after an inquiry or investigation is held, or in a State case after some evidence is recorded and material appears therefrom, justifying such an order.

8. Prior to the major amendments made to the Code of Criminal Procedure in 1972, where an accused was got discharged, in a case exclu sively triable by the Sessions Court, the complainant filed a private com plaint before the Magistrate against all the accused named in the F. I. R. including the accused who was discharged, which complaint was sent for inquiry with the State case. After a full fledged inquiry, the Magistrate determined in both the cases which of the accused were to be committed for trial to the Court of Session, where the accused who was discharged was not committed in the private complaint case, the complainant had a right of filing a revision under section 437 to secure his commitment. If he failed in revision, or where no revision was filed, the Court of Session could not summon, him, even if during the course of trial, it found material against him showing that he was liable in respect of any of the offences imputed to him. In one such case Mir Fatehkhan Mir Pirbux. khan v. Emperor (A I R 1942 Sind 161), where a Court of Session summoned an accused, who was earlier discharged, during the course of trial, after it found material against him, it was held that the .fudge, if he considered, by reason of facts disclosed in the trial, that proceedings should have been initiated against him, he should have expressed this opinion in his judgment and invited the Public Prosecutor and the District Magistrate to consider the advisability of taking action in the matter, but he should not have summoned him, for he had not been committed.

9. With the amendments made to the Code in 1972, Chapter XVIII relating to commital proceedings to be initiated in cases triable by the Court of Session or the High Court, stands deleted. Where a private com plaint is now filed in respect of a case exclusively triable by a Court of Session, the same is processed under Chapter XVI, where the Court of Session, after examining the complainant, can either inquire into the case itself or direct an inquiry or investigation to be made by a police officer, or such other parson as it thinks fit, or direct an Investigation to be made specifically by, a Magistrate subordinate to it, for the purpose of ascertaining the truth or falsehood of the complaint, and, after considering the state ment of the complainant and the result of the investigation or inquiry, if any under section 202, there is in its judgment sufficient grounds for proceeding, it can summon such accused to face trial. As held in State v. Muhammad Usman (P L D 1975 Kar. 190), each of the courses open under section 202 is not mutually exclusive, but may be resorted to one after the other or even concurrently. In the inquiry conducted under, section 202, an accused has no locus standi as a party, though he may attend and watch proceedings, no right to be represented by a counsel, no right to cross‑examine the witnesses of the complainant, no right to call evidence in his defence and no right to explain the circumstances appearing in the evidence against him. However. in the investigation conducted by a police officer or a Magistrate under section 202, he has the right of asserting and proving his evidence. In investigation, the case of all the parties would reopen fully, leaving all the parties to prove their respective cases by producing their witnesses ‑and satisfying the Investigating Officer or Magistrate as regards the truth of their version. Between the two, the direction for investiga tion would appear to be more appropriate and proper where the Court considers the same absolutely necessary, for example where it feels that the defence of sortie of the accused was not properly examined or facts or circumstances which should have been looked into were totally ignored. The addition of subsection (2) to section 202, of the Code is specifically intended to meet this requirement and Courts of Session should not be unmindful of its importance. But an order for investigation should be avoided where the accused are Police Officers, or belong to the police force, or where the offence has been committed in connivance with icily member of the police force, for in such a case such an order would be undesirable in the public interest. Looking at the provisions of the new section 202 from all angles, I would hold that in the event of an inquiry, the person conducting the inquiry should not only record the evidence of witnesses produced by the complainant, but should also examine the Investigating Officer, or, in the alternative, call for and peruse the Ziminis, with his assistance, to inquire into the reasons and circumstances which may have weighed with him in holding some of the accused, whose names he has placed in Column No. 2, as innocent and to examine the nature of the evidence produced by such accused in their defence. Some reference of this evidence or examination, should appear in the inquiry report, in deference to the case of the accused who have been found innocent, for without it the report should be indeed unfair. Similarly, in the event of an investigation under section 202, the person conducting the investigation should apply his mind to the whole file of the case, including the statements of the witnesses produced by the complainant and by any of the accused, recorded under section 161, and witnesses which may freshly be offered for examination, and all other relevant facts and circumstances as may appear on the record or be brought or produced before him, to determine, whether, after keeping in view both the material produced by the complainant and the accused, a prima facie case appears against all or any of the accused named in the private complaint, reasonably showing their involvement in the offences imputed to them, which, in fairness to both the parties, should go for trial and against whom the defence offered cannot be treated as unequivocally justifying the displacement of the complainant's case. Unless proper safeguards are provided to the accused to enable him to produce his defence, during investigation, or to have the material relating to the same fully brought to the attention of or considered by the Inquiry Officer, during the inquiry, a fair and equitable compliance of section 202 of the Code cannot be said to have been made, Since many years, the procedure adopted by the Inquiry Officer has shown scant regard for the accused's defence. Courts have permitted truth to be sacrificed at the alter of procedure, by avoiding to record or consider any evidence or material that may prejudice the complainants' case. According to the principles of Islamic Justice, truth cannot be permitted to be stifled to any manner, least of all to proceedings which are intended to determine it. With the present shift in thinking, Courts must change their attitude and give a fair share of attention to the accused's defence, so that truth is permitted to freely surface and justice is done to both sides freely and fairly.

10. In the face of the amendments made in 1972, the question that arises is whether a Court of Session can summon an accused, who has been earlier discharged, if during the course of trial, it finds material against him showing his involvement n any of the offences imputed to him and, if so, on what material or evidence. The answer is obviously in the affirmative. The proceedings under Chapter XVI, are no higher than those under Chapter XXII‑A. If in proceedings under Chapter XXII‑A, the Court of Session considers, on the basis of evidence recorded, that there are sufficient rounds for proceedings against a person who is discharged, it should have the right to summon him. How much evidence should be recorded would depend upon the facts of each case. No hard and fast rule can be laid down In this respect. Since in proceedings under Chapter XVI, the complainant's witnesses are not liable for cross‑examination and the accused need not produce his defence, a Court of Session, when starting a trial, may feel tempted, in order to determine whether an accused discharged by a Magistrate should be summoned, to first frame a charge against the accused named in Column No. 3 and perhaps also those named in Column No. 2 (who have not been discharged by the Magistrate) and record the examination‑in‑chief of a number of witnesses, reserving their cross‑examination to a future date, and then, finding sufficient grounds, to summon the accused who have been discharged, but this procedure would be highly irregular, if not Illegal, On principle, once the court of Session has started a trial, it must record evidence as in a trial and not adopt a procedure akin to an inquiry. Any tendency to adopt the procedure of an inquiry would be fraught with danger, as it would induce the Court to record minimal evidence, which it would not otherwise do, if it were holding a proper inquiry itself and, worst of all, it would induce complainants in future not to file private complaints, but to take advantage of such summary procedure provided by the trial Court. The advantage and protection gained by an accused who has been discharged after leading convincing evidence before the police during investigation, should be given the respect it deserves and should not be allowed to be lightly disturbed,

11. In the instant case, the learned Additional Sessions Judge had hardly allowed the examination‑in‑chief of Qudrat Ullah Ruddy P. W. 1 to be completed, when he accepted the prayer of the Public Prosecutor to summon the petitioners and nine others to face their trial. One would imagine that he would have allowed his examination‑in‑chief and cross -examination to be completed and also examined some further witnesses. The evidence of a witness at the trial without his cross‑examination is no evidence. See Yahya Bukhtiar v. The State (P L D 1983 S C 291). The learned Addi tional Sessions Judge appears to have acted rather hastily in relying upon evidence which was legally no evidence and his order of 18‑2‑1986 summoning the petitioners and others to face their trial deserves to be set aside.

12. I will now deal with the last submission made by the learned counsel for the petitioners. From the facts submitted in para. 2 above, it is clear that on 5‑12‑1984 Mr. Javed Iqbal, Additional Sessions Judge, had summoned all the twenty‑six persons including the petitioners, to face trial, that on 19‑3‑1985 the said Judge passed an order deciding to take‑up the complaint case first and that on 22‑9‑1985 Qudrat Ullah Ruddy complainant, withdrew his private complaint. On 12‑1‑19156, Mr. Muhammad Ashraf Butt, Additional Sessions Judge, the successor of Mr. Javed lqbal, Additional Sessions Judge, issued notices to the parties for rehearing the petitioners' application dated 22‑12‑1984 and, after hearing arguments thereon, he recalled his predecessor's order dated 5‑12‑1984. It is apparent that the complainant withdrew his complaint on 22‑9‑1985 on the assumption that the order of 5‑12‑1984 still held the field, little realizing that the last order would be revoked on 12‑1‑1986, without notice to him to plead for the revival of his complaint. Before passing the order of 12‑1‑1986, the learned Additional Sessions Judge should have formally given notice to Qurdat Ullah Ruddy, complainant, as to whether he desired his complaint to be restored, considering that his order would place the complainant in peril of losing his right to prove the involvement of the petitioners in the crime in instance. The fact that he did not do so, clearly nullifies his order. In this view of the matter, it is not necessary for me to decide at the moment the legal proposition submitted by the learned counsel for the petitioners that the private complaint of Qudrat Ullah Ruddy complainant, should be treated as still legally pending. On principle also it is proper that a Court should compel an aggrieved complainant to file a private complaint, where an accused' has been discharged by the order of a Magistrate. Where a private complaint is filed, evidence of the complainant is properly recorded in the inquiry. In trial Court proceedings, where an attempt is made to search for evidence for a discharged accused to be summoned, the tendency of record ing minimal evidence is strongly present, which may corrupt, if not nullify, the proceedings.

13. The upshot of the above discussion is that the orders of the learned Additional Sessions Judge dated 5‑12‑1984 and 18‑2‑1986 are liable to be set aside.

14. For the foregoing reasons,, this petition is accepted and the orders of the learned Additional Sessions Judge, dated 5‑12‑1984 and 18‑2‑1986 are hereby set aside. The learned Additional Sessions Judge shall take steps to first process the private complaint filed by Qudrat Ullah Ruddy, complainant, against the petitioners and others and thereafter act in accordance with law.

M.B. A. Revision allowed.

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