BASHIR AHMAD Versus BASHIR AHMAD
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.