LAL DIN Versus THE STATE
This revision petition is directed against the orders of Mr. Aqiullah Khan, Magistrate First Class and Mr. Muhammad Mian Qureshi, Sessions Judge, Sheikhupura, passed by them on 26th of July 1972, and 6th of January 1973, respectively, refusing to order the discharge of the petitioner, Lai Din, who along with two others, namely, Babu and Shafi is being proceeded against on the bass of a complaint filed by Muhammad Ramzan, respondent No. 2, under section 302/34, P. P. C. for having caused the death of Muhammad Shafi brother of the complainant by violence.
2. Babu, one of the accused named in the complaint, was married to Mst. Mukhtaran the sister of Muhammad Shafi deceased. Muhammad Shafi deceased in exchange for this marriage, was married to Mst. Khurshid, the sister of aforesaid Babu. It appears that Muhammad Shafi and Khurshid were not pulling on well and the parties had met in the house of Lal Din petitioner on the night of the occurrence which took place on 30th of October 1970, for the purpose of negotiating a compromise. Muhammad Shafi met his death in the courtyard of Lai Din the same night due to contused wounds caused on his head. Lai Din lodged the first information report stating that Muhammad Shafi, deceased, and Rehmat, his brother, had come to his courtyard with aggressive designs and Muhammad Shafi grappled with Babu. Rehmat took hold of a hatchet which was lying in the courtyard and aimed a blow at Babu, but instead of Babu, Muhammad Shafi was hit from the blunt side of the hatchet. Muhammad Shall fell down and died after some time. Rehmat was arrested and placed before a Magistrate for enquiry. I understand that he has been committed to the Court of Session to stand his trial.
3. Muhammad Ramzan filed a complaint on 14th of November 1970 stating that Lai Din had taken away his brother Muhammad Shall from his house on the night of 30th of October 1970, saying that Babu and Muhammad Shafi son of Lai Din wanted to talk to him about his wife Mst. Khurshid. Muhammad Shafi reached the house of Lai Din. Babu demanded that Muhammad Shafi should divorce his wife. On the refusal of Muhammad Shafi to do so, all the three accused got enraged. Lai Din and Shafi accused who are described as near relatives of Babu in the complaint, caught hold of the deceased and Babu gave the deceased a hatchet blow on the head. The complainant named eight eye‑witnesses of the occurrence including Mst. Sardaran his own wife and Mst. Inayatan the wife of Rehmat, his brother. It was averred by the complainant that Lai Din had forestalled him and had lodged a false information with the police in respect of the circumstances under which his brother had met his death.
4. The learned Magistrate by order dated 19th of November 1970, sent the complaint to the Inspector of Police Sangla Hill for registration of a case and for investigation under his personal supervision. The complaint was forwarded by the Inspector to the S. H O. Manawala on 23rd of November 1970, for immediate legal action. The order of the learned Magistrate was not complied with and Muhammad Ramzan, complainant, filed another application before the Magistrate on 15th of January 1971, stating that the police had not taken any action in the matter. The Magistrate forwarded this application in original to the Inspector of Police, Sangla Hill. The S. H. O. reported on 8th of February 1971, that the complaint was false and that report No. 270/70 had already been registered in respect of the same incident and according to the police, Rehmat, the brother of the deceased, was the actual culprit. The Magistrate after the receipt of this report fixed 20th of February 1971, for the appearance of the complainant. It, however, transpired on this latter date that the Magistrate who was dealing with this matter had recorded the statements of some witnesses in this case under section 164, Cr. P. C. The complaint was sent to the District Magistrate for transfer to some other Court of competent jurisdiction. The District Magistrate ordered the transfer of the case to another Magistrate. The new Magistrate summoned the accused on 19th of May 1971. The petitioner approached the High Court for quashment of proceedings against him vide Criminal Miscellaneous No. 108/Q of 1972. This application was not pressed and was dismissed as having been withdrawn. He thereafter moved a petition before the Ilaqa Magistrate for ordering his discharge. It is out of this latter petition that the present proceedings have arisen.
5. The learned counsel argued that the order dated 19th of November 1970, passed by the learned Magistrate by which directed the police to register a case had resulted in the final disposal of the complaint and he had thereafter no jurisdiction to deal with the matter, as he had exhausted his jurisdiction under subsection (3) of section 156, Cr. P. C. by passing this order.
6. It was further argued that a learned Magistrate having taken cognizance of the offence on a police report, it was not open to a private complainant to reagitate the matter in a different shape by naming different accused. It was suggested that the private complainant could approach a Magistrate under section 540, Cr. P. C. for summoning his witnesses in order to find out the truth or otherwise of the allegations against the accused named by him. The learned counsel, however, was not able to cite any judgment in support of this latter contention.
7. Under subsection (3) of section 156 of the Criminal Procedure Code a Magistrate may direct an investigation in a cognizable case. This, however, does not mean that if the directions of the Magistrate are not .complied with he is helpless to take action in the matter. The order of the learned Magistrate to the police in this case was not complied with. The police did not record any evidence nor did they summon the complainant. They just returned the papers with a report that the complaint was false. It cannot, therefore, be said that the police report under these circumstances could have the effect of divesting the learned Magistrate of the basic jurisdiction that he had in this case.
8. The argument of the learned counsel alternatively advanced to the effect that the complaint had been sent to the police under section 202, Cr. P. C. and after it was returned by the police, the Magistrate to whose Court it was transferred had no jurisdiction to conduct a preliminary enquiry, has no force. The order of the Magistrate to the police was to register a case and make investigations. Such an order would clearly fall under subsection (3) of section 156, Cr. P. C. When the police failed to comply with this order, the only proper course left with the Magistrate was to himself proceed with the matter and to record preliminary evidence. No enquiry was made by the police, and even if it be assumed that the order of the Magistrate was a reference under section 202, the Magistrate in case of the failure of the police to make any enquiry had all the jurisdiction to proceed with his primary duty of administration of justice. The act or omission of the police could not have the effect of depriving the Magistrate of his jurisdiction.
9. There is no authority to support the contention of the learned counsel' that once a Magistrate takes cognizance of an offence on a police report a private complainant is debarred from filing a complaint in regard to the same incident although it may be on different facts and against different persons. Moving the machinery of law for the punishment of offenders is not the sole monopoly of the police, who of course as agents of the State, have been entrusted with the duty of taking action in cognizable offences. Even a private citizen can knock the door of a Court of Justice and it is not, necessary that he may be an interested party. The intention of the Legislature is to achieve the object of dispensation of criminal justice by all possible means. Cognizance of an offence can be taken by a Magistrate even on the basis of his own knowledge and suspicion. In this last contingency, a duty is cast on him under section 191, Cr. P. C. to inform the accused that he has a right to have the case transferred to another Magistrate.
10. The word "complaint" as defined in clause (h) of section 4 of the Criminal Procedure Code has a very wide connotation. It is also to be noted that it does not include a police report. It would, therefore, appear that a complainant's right to approach a Court of Law is independent of a police report and the existence of a police report is no bar to the institution of a complaint on different facts and against different persons. Again "offence" as defined in clause `o' of section 4 of Criminal Procedure Code is an "act or omission made punishable by any law." When a Magistrate takes cognizance of an offence he necessarily embarks on a process of finding out as to how and by whom the offence was committed. The object of the law is to keep the doors of justice open for any individual who may feel that the police report had not covered the whole field and some of the miscreants, for some reasons, had been left out. It was with some purpose that in section 190, the Legislature used the word may take "cognizance of any offence," because the word "offence" is necessarily relateable to the offender who is to be visited with punishment. The object was to give the Magistrate freedom to decide on the basis of evidence whether led in relation to proceedings initiated by a police report or in relation to a complaint, as to who are the real culprits. He is not bound by any law to deal only with the accused named by the police. There is no provision the whole of the Criminal Procedure Code to indicate that the Jurisdiction of a Magistrate was sought to be restricted where he had already Taken cognizance of an offence on the basis of a police report. I may state that the criminal proceedings are not at par with the civil proceedings where the parties cannot travel beyond their pleadings. The scheme of the administration of criminal justice is at a much wider scale and for good reasons.
11. In Qazi Faizullah and others v. The State and others P L D 1965 Kar. 105, the police had challaned a number of persons for rioting etc. but a complaint was also separately filed in respect of the accused not named by the police. It was held that where a Magistrate had taken cognizance of certain offences on the basis of a police report, he could not refuse to take cognizance of a complaint arising out of same set of facts filed directly by a private person and that he could not discharge the accused under section 203, Cr. P. C. without holding preliminary enquiry to find out the truth or falsehood of such complaint. It was held in Hart Satya Bishnu v. Emperor I L R 50 Cal. 482, that a Magistrate was not debarred by any provision in the Criminal Procedure Code from taking cognizance of an offence only because another Magistrate had already taken cognizance of the same and was in seisin of the case. It was observed that the multiplicity of trials could be avoided by transfer of the cases to one of them. The Supreme Court in Nur Elahi v. The State P L D 1966 S C 708 dealt with a situation where different accused were named in the police report and in the private complaint. Their Lordships actually laid down a procedure for the hearing of such cases by the, Sessions Court. Of course, the question raised by the learned counsel was not precisely raised before their Lordships, but the precedent judgment lends support to the proposition that a complaint with regard to the same incident can be entertained in spite of the fact that the Magistrate has taken cognizance of the offence in relation to some accused not named in the police report. The argument of the learned counsel that a private complainant in such cases should instead of filing a complaint invoke the provisions of section 540, Cr. P. C. apart from being against the strict rules of the Law of Evidence, is misconceived and is against the whole scheme of the Criminal Procedure Code. Repelling this argument I cannot do better than to quote from my order passed in Criminal Miscellaneous No. 663/Q of 1973. I have said
"The solution suggested by the learned counsel that an aggrieved person may approach a Magistrate for recording evidence against an accused who had been left out under section 540, Cr. P. C., is open to more than one objection. This section empowers the Magistrate to summon witnesses in order to reach proper conclusions in respect of the matter under inquiry or trial. The first part of the section gives discretionary power to the Court to examine, summon or recall a witness and the second part places an obligation on the Court to follow the same process if it is essential for the just decision of the case, section 540, Cr. P. C. is, therefore, to be invoked when the parties are before the Magistrate and the act of summoning of a witness or his re‑examination is to be confined to the facts laid down before the Court. The object of this section is not to invest the Magistrate with the powers to conduct a rambling enquiry against persons named before him. The Magistrate cannot at the instance of an applicant start recording evidence against a person who has not been named as an accused person before him and thus burden his records with irrelevant evidence and bring in matters which may cloud the whole issue before him."
12. The result is that I find no force in this revision petition which is, hereby, dismissed.
13. The learned Magistrate has completed the according of the evidence of the prosecution in this case and has also recorded the statements of the accused who first indicated that they would produce evidence in defence but made statements on 3rd of October 1972, that they would not like to produce defence. The records shall to sent back to the learned Magistrate within a: week so that he deals with the case according to law.
K. B. A. Petition dismissed.