2017 YLRN 326

MUHAMMAD YOUNIS Versus State

Citation2017 YLRN 326

CourtLahore High Court

Judge(s)Ibad-ur-Rehman Lodhi

ORDER

Criminal Miscellaneous No.570-M of 2014.

IBAD-UR-REHMAN LODHI, J.--- Through this criminal miscellaneous, the orders dated 15.04.2014 17.05.2014, 21.05.2014 and 28.05.2014 are prayed for to be suspended.

2. Since in the Criminal Revision, the order dated 15.04.2014 has been challenged, therefore, the Criminal Miscellaneous with regard to orders subsequently passed is misconceived, whereas, with regard to order dated 15.04.2014, the interim order has already been passed by this Court on 02.06.2014.

3. This Criminal Miscellaneous is misconceived and is dismissed.

Criminal Miscellaneous No.672-M of 2014.

4. Through this Criminal Miscellaneous extension of injunctive order dated 02.06.2014 has been prayed for.

5. Since the main criminal revision is finally being argued today, therefore, extension in the injunctive order is irrelevant, hence, this Criminal Miscellaneous is dismissed.

Main Case (Criminal Revision No.139 of 2014)

6. The report under Section 173 Cr.P.C. was before the learned Additional Sessions Judge, Sahiwal containing no name of accused in Columns Nos.2, 3 and 4 thereof; but keeping in view the details given by the Investigating Agency regarding the occurrence, column No.7, which included the names of accused persons, the learned Additional Sessions Judge, seized of the proceedings ordered the summoning of the accused persons mentioned in column No.7 of the report under section 173, Cr.P.C. The accused persons, so summoned, have called in question the order of their summoning by means of the present criminal revision.

7. In support of this petition, the learned counsel for the petitioners contended that unless the names of accused persons in any criminal matter are noted in columns Nos.2, 3, and 4 of the report under section 173, Cr.P.C. the court has no jurisdiction to summon them to face the trial. According to the learned counsel for the petitioners; since the order of summoning is bad in law, therefore, all subsequent proceedings are liable to be vitiated.

8. Contrary to that while responding, learned counsel for the complainant has contended that the courts always take cognizance of the offence and not the offender and irrespective of the fact that the names of accused noted in columns Nos.2, 3 and 4 of the report under section 173, Cr,P.C. or anywhere else, the court was having ample jurisdiction to order summoning of accused persons.

9. After hearing the learned counsel for the parties and going through the record minutely, I am of the view that the learned Additional Session Judge has committed no illegality while ordered summoning of the accused persons whose names have been mentioned in column No.7 of the report under section 173, Cr.P.C.

10. Such question has been under consideration before the Courts earlier also and I can get guidance from the case law titled 'Raja Khushbakhtur Rehman and another v. The State' (1985 SCMR 1314), wherein it was held that the trial court takes cognizance of offence and not the offender, thus it was cognizance of case as a whole and not qua some of accused persons found by the police to be implicated in the case. Cognizance can be taken even if the offenders be unknown and on taking cognizance of the offence, Court acquires jurisdiction over all persons involved and not only over the persons against whom challan is submitted.

In the same judgment word 'cognizance' has been defined in the manner that it is a term of art implying application of mind to facts of a case in order to determine whether facts disclosed, constituted an offence triable-by a court or not.

11. This Court in the case of 'Muhammad Yaqub v. The State' (PLD 1998 Lahore 523) has held that when a case is sent up for trial to the Sessions Court with brief facts of the case stated in the column No.7 of the challan, Court is at liberty to summon any person appearing to be involved in commission of an offence irrespective of the fact whether his name finds mention in column No.2 or 3 of the challan or not. Similarly, in case titled 'Muhammad Ikram v. The State and another' (2012 PCr.LJ 1097) the view of this Court was that the Court of Sessions being trial court takes cognizance of an offence and not an offender and on taking cognizance of the offence, it acquired jurisdiction over all persons involved and not only over persons against whom challan was submitted.

12. The Police Rules, 1934, provide the details as to in what manner the Department of Police is required to proceed in its sphere of work. Volume III Chapter XXV of the said Rules deals with the investigation and Rule 25.57 provides as to in which manner the final investigation report is required to be prepared and furnished before the Court. Form No.25.57(2) is the Performa provided for Investigating Officer according to which he is required to furnish the final report under section 173 Cr.P.C. For ready reference, Form is reproduced herein below:--

FORM No.25.57(2)

FINAL REPORT UNDER

SECTION 173,

CRIMINAL PROCEDURE CODE

District_____ Final Report No._____ dated____19

Police Station_____ in first information No.____ dated_______ 19

1. Name and address of complainant or informant.

2. Nature of charge or complaint.

3. Description of property stolen, if any

4. Name and addresses of accused persons, if any

5. If arrested, date and hour of arrest.

6. Date and hour of release and whether on bail or recognizance.

7. Property (including weapons) found, with particulars of where, when by whom, found and whether forwarded to Magistrate.

8. Brief description of information or complaint, action taken by police with result, and reasons for not proceeding further with investigation.

A.M.

Despatched at______ on ____ 19

P.M.

Signature of Investigation Officer

N.B.-The Magistrate should record his order on the back.

It is clear that the police rules and forms appended therewith are provided for convenience purpose and are not of mandatory in nature. In fact, it is required by the Investigation Officer to place before the court complete information as to the name and address of the complainant or informant, nature of charge or complaint, description of property stolen, if any, name and addresses of accused persons, if any, if arrested, date and hour tf arrest, date and hour of release and whether they are on bail or not, property (including weapons) found, with particulars of where, when and by whom, found and brief description of information or complaint, action taken by .police with result, and reasons for not proceeding further with investigation.

13. As noted earlier, the court taking cognizance of the matter would not be debarred from taking note of any fact mentioned in either column of form No.25.75(2). When the cognizance is taken by the Court, it is to be taken as a whole and court must not bound to take note of a particular fact mentioned against a particular column and to ignore if some fact has been noted against some other column meant for providing of some other information by the investigating agency.

14. It is the final report under section 173, Cr.P.C. in whatever manner it is filed before the court, which is to be taken into consideration as a whole by the Court ignoring as to what has been noted against respective columns of the said form.

15. In the present case, when the learned Additional Sessions Judge after taking notice of the role of the accused persons as has been detailed in column No.7 of the final report has rightly exercised his jurisdiction by summoning the accused mentioned in column No.7 thereof.

16. The learned counsel for the petitioner has failed to point out any illegality, irregularity or jurisdictional defect in the order impugned herein, which suffers from no defect and has been passed while exercising the jurisdiction available to the learned Additional Sessions Judge, thus finding no force in this petition, the same is dismissed.

HBT/M-25/L Petition dismissed.