MUHAMMAD ARIF GULAB KHAN AND 6 Others IMTIAZ KHAN AND Another vs THE STATE. THE STATE. THE STATE

ORDER

1. WAHIDUDDIN AHMAD, J. This order will dispose of Criminal Petitions for Special Leave to Appeal Nos.

2. 291, 292 and 293 of 1969, which arise out of an order of the High Court of West Pakistan, Lahore, in Criminal Miscellaneous No. 4430 of 1969, decided on the 10th October 1969.

3. On the 22nd February 1968, a case was registered against Imtiaz Khan and Anwar Hussain under section 392, P. P. C. In the beginning they were granted bail but on the 24th May 1968, the learned Sessions Judge, Jhelum, cancelled the bail of Imtiaz Khan. It is alleged that Imtiaz Khan .Who was present in Court, wanted to slip out. He was caught hold of by Munawar Khan, Head Constable and was told that he was under arrest. Constable Amir Hussain wanted to handcuff' him but he gave a fist blow on the face of Munawar Khan. His com--panion Arif whipped out a knife and attacked Munawar Khan which he successfully avoided. It is further alleged that the other companions of Imtiaz Khan, namely, Gulab Khan, Sadiq, Anwar Hussain etc., grappled with Munawar Khan. On these allegations, a case was registered on the 24th May 1968, at Police Station City Jhelum under sections 307/353, 148/149 and 224/225, P. P.C.

4. It appears that on the 24th May 1968, the police proceeded to the house of Arif to arrest him and at the time of his arrest he was found in possession of a clasp knife with a blade 5j" long. The knife was taken possc5si on of and another case was registered against him under section 14 of the Arms Ordinance, 1965, at Police Station City Jhelum.

5. Being dis-satisfied with the Investigation, the petitioners approached the Inspector- General of Police and requested that the investigation of their above cases be entrusted to the Crimes Branch.

6. The Inspector-General of police accepted this request and directed that the matter may be investigated by the Crimes Branch. The result of the investigation of the cases by the Crimes Branch was that all these cases were false and a recommendation was made to the Magistrate for cancellation of these cases. The report of the local police and the report of the Crimes Branch was considered by the Additional District Magistrate, Jhelum, and he took cognizance of the cases and in order to find out the truth, directed the police to submit a proper challan and the accused to appear on the 6th June 1969.

7. This order of the Additional District Magistrate, Jhelum, was challenged by the petitioners in Criminal Miscellaneous Nos. 4428, 4429 4430 and 4914 of 1969. It was contended on behalf of the petitioners that the Additional District Magistrate was not competent to take cognizance of the case and he should have accepted the recommendation of the Crimes Branch that there was no case against the petitioners and cancelled the case against them. This-contention was not accepted by the High Court. The High Court, however, transferred the cases against the petitioners: from the Court of Additional District Magistrate, Jhelum to the Court of Additional District Magistrate, Rawalpindi, for trial in accordance with law. The petitioners, in the above: petitions for Special Leave to Appeal, seek permission to file an appeal against the order of the High Court dated the 10th October 1969.

8. Sardar Muhammad Zafarullah, learned counsel for the petitioners, has contended that under the provisions of the Criminal Procedure Code, the learned A. D. M., could not order the police to submit fresh challan and that in accordance with the provisions of section 190(b) of the Criminal Procedure Code, the learned Magistrate could take cognizance of the case only upon a report in writing of such facts that would show that an offence has been committed. According to the learned counsel in the present case, the police had made a report that the cases against the petitioners be cancelled and, therefore, the order of the A. D. M. To proceed with the cases was unwarranted by law. He contended that the view of the High Court that the Magistrate can take cognizance of an offence even though there is a negative report by the police officer is not in consonance with law. . The contention of the learned counsel is without substance. This aspect of the question was considered by this Court in the case of Falak Sher and others v. The State (PLD 1967 SC 425). It was held in that case that the Magistrate is not bound by the report submitted by the police under section 173, Cr. P. C. When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the con elusions reached by the Investigating Officer. There is nothing in section 190, to prevent a Magistrate from taking cognizance of the case under clause (b) in spite of the police report. It was A further held that the action of the Magistrate in issuing summons to accused despite the fact that Investigating Officer in his report under section 173, Cr. P. C. Had placed their names in column 2 thereof was correct.