GHULAM SIDDIQUE Versus JAMEELA

The petitioner through this Constitutional petition has assailed the discharge order, dated 14‑9‑1988, passed by the Assistant Commissioner/Magistrate First Class, Jand, respondent No.6, on the report of respondent No. 4, where y he discharged respondents Nos. 7 to 11 from the case F.I.R. No.66, dated 22‑5‑1988.

2. The brief facts) giving rise to the present petition are that the petitioner lodged F.I.R. No.66, dated 22‑5‑1988, at Police Station Jand, wherein he stated that on 5th May, 1988, some persons including respondents Nos. 7 to 11 abducted his son Habib Khan (deceased) and later on murdered him. In pursuance of the above‑mentioned F.I.R. respondents Nos. 7 to 11 were arrested by the local police under section 54, Cr.P.C. in connection with the investigation of the murder of Habib Khan. During the course of investigation, the police recovered blood‑stained Jandari (wooden frame used for the carriage of articles on donkey etc.) and offence under section 302, P.P.C. was also added alongwith the offence under section 364, P.P.C.

The investigation was conducted by the D.S.P., Attock. He deleted the offence under section 302, P.P.C. from the police report and the offence under section 364, P.P.C. remained in the field when respondent No.4, D.S.P. Headquarters Attock (respondent No.4) moved the Ilaqa Magistrate under section 169, Cr.P.C. for the discharge of respondents Nos. 7 to 11 whereupon respondent No.6 passed the impugned order, dated 12‑9‑1988, the subject‑matter of this writ petition.

4. For the proper appreciation of legal position as to what is meant by taking of cognizance under the Code of Criminal Procedure, it would be appropriate to reproduce sections 169 and 173, Cr.P.C., in extenso, for facility of reference:‑

"169. If, upon an investigation under this Chapter, it appears to the Officer Incharge of the police station or to the Police Officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if a and when so required, before a Magistrate empowered to take cognizance of the offence, on a police report and to try the accused or send him for trial.

173.‑‑ (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer incharge of the police station shall

(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, if so, whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may; pending the orders of the Magistrate, direct the officer‑in‑charge of the police station to make further investigation.

(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial:

Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost."

5. The cursory reading of sections 169, 173 and 190, Cr.P.C. would show how cognizance is taken under the Code of Criminal Procedure. The bare reading of sections 173 and 190, Cr.P.C. would show how a Court takes cognizance by a judicial action which need not necessarily involve any formal act, but occurs as soon as the Court applies its mind to the suspected commission of the offence as disclosed in the police report or the private complaint, for the purpose of proceedings in a particular way in accordance with the provisions contained in the Code for holding an enquiry or a trial, as the case may be. Under the Code of Criminal Procedure a Magistrate can be said to have taken cognizance of the offence only when he decides to proceed against the offender with a view to determine his guilt. In this connection I place reliance on Muhammad Nawaz Khan v. Noor Muhammad and others P L D 1967 Lah. 176 and Alam Din v. The State P. L. D 1973 Lah. 304, where after positive survey of the law, their Lordships approved this definition of taking cognizance of the offence. The Supreme Court authority i.e. P L D 1987 SC 103, cited by the learned counsel for the petitioner lays down that the police becomes functus officio when the trial Court takes cognizance in the matter. Applying the above‑mentioned principle of law, it would be clear that in the present case, the Magistrate has not yet taken cognizance of the offence. In fart, the police moved a petition under section 169 read with section 173, Cr.P.C. for the discharge of the respondents.

6. The learned counsel for the petitioner has next contended that the offence of murder is exclusively triable by the Sessions Court, hence the Magistrate had no, jurisdiction under the law to discharge the accused even on a police report. The learned counsel appearing for the contesting respondents i.e. respondents Nos. 7 to 11, has drawn my attention to Habib v. The State 1983 S C M R 370, wherein their Lordships of the Supreme Court laid down that a Magistrate is competent to discharge the accused on a police report even in those cases where the offence is exclusively triable by the Sessions Court. He has also placed reliance on P L D 1978 Lah. 236. Respectfully following the principle of law, I am of the view that the 'contention of the learned counsel for the petitioner is devoid of any legal force, as the Magistrate had the jurisdiction to cancel the case on the police report, when the police failed to find out sufficient evidence against the respondents which would connect them with the commission of any crime.

7. The sole point for decision in this petition on which much stress has been laid by the learned counsel for the petitioner is that the police could not get the accused discharged after the Court of competent jurisdiction has taken cognizance of the offence. In the present case that stage has not arrived yet when the police moved the Magistrate for the cancellation of the case. Mere rejection of the bail application would not suffice to fold that cognizance of the offence has been taken by the Magistrate concerned for its onward submission to the Court of Session as provided under section 190(3), Cr.P.C. The proper procedure is that the Magistrate in cases exclusively triable by the Court of Session has to examine D whether prima facie the case disclosed that the offence has been committed, then he is obliged under section 190(3), Cr.P.C. to send the case for trial to the Sessions Court. Ian the present case, the Magistrate had not seized the case for that purpose. Prior to that situation the police moved him for the cancellation of the case. The decision of the Supreme Court relied upon by the learned counsel for the petitioner is distinguishable hence not applicable to the facts of the present case.

8. The learned counsel for the petitioner has failed to satisfy me that the petitioner has not got an adequate legal remedy in the form of a complaint under the Code of Criminal Procedure. The Constitutional jurisdiction of this Court cannot be invoked if the petitioner has got another adequate and efficacious remedy availed to him, which in the present case is available to the petitioner in the form of a private complaint under the Code, because the discharge order cannot be equated with the order of acquittal. Hence the petitioner can file a complaint before the Court of competent jurisdiction.

9. The learned counsel for the respondents has placed reliance on the unreported decision of this Court in Muhammad Iqbal v. Qazi Javaid Ahmad Shafi and others Writ Petition No. 615 of 1988, decided on 14‑12‑1988. In that case, a learned Judge of Ns Court has observed that the petitioner could file the criminal complaint in the Court of competent jurisdiction m spite of the discharge order passed in favour of the alleged accused persons, who are respondents Nos. 7 to 11 in the present case under the provisions of Criminal Procedure Code before the Magistrate.

10. No other point has been urged at the Bar.

11. The upshot of the above discussion is that no case is made out for interference by this Court in its Constitutional jurisdiction, because the order of the Magistrate while agreeing with the police report cannot be termed as an of order without lawful authority as under the provisions of the Code of Criminal Procedure as mentioned above, the Magistrate had full authority to agree with the police report, even in a case which is exclusively triable by the Sessions Court. Furthermore, the petitioner has an adequate and efficacious remedy available to him in the form of private criminal complaint. Hence this petition is dismissed, but in view of the complicated question of law, the parties are left to bear their own costs.

H.B.T./A‑541/L Petition dismissed.