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Petitioner: MUHAMMAD HANEEF AND Another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, Aftab Farrukh Title: MUHAMMAD HANEEF AND Another vs THE STATE Case No.: Criminal Appeal No. 682 and Murder Reference No. 210 of 1978 Date of Judgment:1979-03-04 Reported As: 1979 P Cr. L J 1078 Result: Appeal partly accepted
JUDGMENT
JUDGMENT AFTAB FARRUKH, J.-The complainant, Noor Muhammad, brother of Rana Muhammad Yaqub deceased, lodged the F. I. R. (Exh. P. A.) naming Muhammad Hanif son of Rehmat Khan, aged 43 years, Mehdi Khan son of Subey Khan, aged 66 years, Muhammad Boota son of Nazir Ahmad, aged; 23 years, and Mahmood Ahmad son of Abdul Ghani, aged 23 years, for the murder of his brother Rana Muhammad Yaqub. In three successive investigations, Muhammad Hanif and Mehdi Khan were found innocent and their names were placed in Column No. 2, while their co-ac used Muhammad Boota and Mahmood Ahmad were challaned. The learned trial Court vide order dated 23rd April, 1978 summoned/ the two accused named in Column No. 2 and granted them bail before arrest. Mr. Muhammad Rafiq, Additional Sessions Judge, Sialkot, ho tried the four accused, vide judgment dated 8th July 1978, convicted all the four accused under section 302/34, P. P. C. And sentenc--ed Muhammad Hanif and Muhammad Boota to death and Mehdi Khan and Mahmood Ahmad to imprisonment for life. No fine has been impose, nor any direction for payment of compensation under sec--tion 5 4-A, Cr. P. C. Has been made. The convicts have filed two separate appeals against their conviction and the complainant has filed a revision petition for the enhancement of the life imprisonment of Mehdi Khan to death. All the four i.e. M. R. No. 210 of 1978, Cr. A. No. 682 of 1978, Cr. A. No. 708 of 1978 and Cr. R. No. 78 of 1979 are being disposed of by this judgment. 2. The occurrence took place at about 6 p.m. On 4th July 1976, on a path way near village Maan at a distance of 3/4 mile from Police Station Qilla Sobha Singh, Tehsil Narowal District Sialkot. Noor Muhammad (P. W. 1) brother of the deceased, lodged F. I. R. (Exh. P. A.) same day at 6-30 p.m. Which was recorded by Ramzan Ali Shah Sub-Inspector (P. W. 14). This report was initially under
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section 307/34, P. P. C. And subsequently on the death of Muhammad Yaqub on 5th July, 1976 at about 12-45 p.m. Was altered to one under section 302/34, P. P. C. 3. The injured was medically examined in the first instance by Dr. Mrs. Fahmida Sarfraz, W. M. O., Civil Hospital, Narowal, at 8-30 p.m. On 4th July, 1976 and the injuries mentioned in the medico-legal Report printed at pages 8 and 9 of the paper book were noted. Same day at 9 p.m., the Police made query (Exh. P. D.) regarding the fitness of Rana Muhammad Yaqub for making a statement and the reply (Exh. P.D./1) was in negative. Since the condition was serious, the patient was referred to Allama Iqbal Memorial Hospital for better treatment, but subsequently removed to Mayo Hospital, Lahore, where he breathed his last as men--tioned above, at 12-45 p.m. On 5th July, 1976. 4. On 6th July 1976, Dr. Tahir Anees (P. W. 15) performed the post-mortem examination and found the following injuries on the dead, dead body of Rana Muhammad Yaqub: - (1)A lacerated wound 1/3" x 1/4" over left front outer lower part of chest with margins slightly blackened and inverted. (2)Penetrating lacerated wound 1/8" x 1/8" over outer front mid-left arm with inverted blackened margins. (3)Penetrating lacerated wound 1/3" x 1/4" over inner back lower left arm with everted margins communicating with injury No. 2. (4)Incised wound 5/8" x 1/8", muscle deep over mid-left cheek. (5)Incised wound .1 /2" x 1/8" muscle deep over mid-right lower eye-lid. (6) Penetrating lacerated wound 1/3" x 1/4" over left forehead with inverted blackened margins. (7)Stitched incised wound 1-- " long over front lower part of right arm, horizontal. (8)Stab 1-- " long partly stitched over mid lower abdomen. (9)Stab 3/4" long partly stitched over mid upper abdomen, (10)Stitched sharp-edged vertical wound 11" long over right side of abdomen. Two metallic foreign bodies marked `A' and `B' were recovered from the skull and sealed in a phial, which was delivered to the Police. Injuries Nos. 1, 2 and 6 were inflicted by a firearm, injury No. 3 was exit of injury No. 2, while injuries Nos. 4, 5, E, 8 and 9 were inflicted by a sharp-edged weapon. Death in the opinion of the doctor was due to coma resulting from injury No. 6 and shock and bleeding caused by injuries Nos. 1, 8 and 9. These injuries were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was about 18 hours and between death and post-mortem examina-- tion was about a day. 5. The prosecution case succinctly stated is that the two brothers were proceeding to Qilla Sobha Singh on cycles, and when they reached near the tube-well of Mehraj Din Arain in the area of village Maan at about 6-00 p.m., the four accused out of whom Muhammad Boota and Muhammad Hanif were armed with revolvers and the other two armed with daggers, ambushed them from behind the reeds. Muhammad Hanif raised a lalkara to Rana Muhammad Yaqub [ABB KHIDHAR JAA TAA HAIN ARAZEE DAYY KAR BEHJAHHN GAYY] and Muhammad Boota and Muhammad Hanif fired with their revolvers on Rana Muhammad Yaqub who fell down one. The ground, whereupon Mehdi Khan and Mahmood Ahmed inflicted injuries with their daggers while he lay on the ground. Muhammad Tufail (P. W. 9) and Nazir Ahmad (given up as having been won over) also reached there and saw the incident. The motive alleged is that Muhammad Hanif had manoeuvred double allotment about which the deceased had given secret information to the authorities and he was pursuing the case. At the trial, it has been clarified that in fact it was Abdul Salam on whose behalf Rana Muhammad Yaqub held the power of attorney, had given the secret information against the grandfather of Muhammad Hanif and this matter was being pursued by the deceased.
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Another motive, which is mentioned at the trial is strained relations on account of B. D. Chairman Elections held in the year 1959-60 between Rana Muhammad Yaqub and a brother of Mehdi Khan in which Mehdi Khan lost. No specific reason for Muhammad Boota or Mahmood Ahmad having joined in this attack has been given. Muhammad Hanif and Mehdi Khan, according to the prosecution, are related inter se, while there is no relationship between Muhammad Boota and Mahmood Ahmed with any of the accused. There is Ro incriminating recovery at the instance of Muhammad Hanif or Mehdi Khan. Muhammad Boota was arrested by Ramzan Ali Shah Sub-Inspector (P. W. 14) on 6th July, 1976, and on the same day blood-stained bayonet (Exh. P. 12) was recovered at his instance and taken into possession vide Memo. Exh. P. N. Ramzan Ali Shah Sub-Inspector (P. W. 14) supports this recovery, while the other attesting witnesses Akbar Ali (D. W. 1) and Inayat Ullah were given up, the former as unnecessary and the latter as having been won over. On the same day, at the instance of Muhammad Boota, revolver (Exh. P. 5) and from its chamber four empties (Exhs. P. 6 to P. 9) and two live cartridges (Exhs P. 10 and P. 11) were taken into possession vide Memo. Exh. P. M, which, Memo. Is attested by the same witnesses. The Serologist vide report (Exh. P. V.) found the blood on the bayonet as human. Mahmood Ahmed was arrested on 8th July, 1976 and revolver (Exh. P. 13) with four live cartridges (Exh. P. 14/1-4) vide Memo. Exh. P. O. Was taken into possession, on the same day, which Memo. Is attested by Ghulam Nabi (P. W. 11) and S. I. Ramzan Ali Shah (P. W. 14) besides Abdul Majid who was given up as won over. The Firearm Expert vide report printed at page 94 of the paper book, found lead bullet to be matching with the revolver marked `B': The learned counsel for the accused challenged the admission of this report into evidence on the ground that it has not been formally tendered in evidence. It is further pointed out that on the evidence, as it is, it has not been conclusively proved as to which of the two revolvers recovered is the revolver marked as `B' by the Expert. 6. All the four accused in their statements have raised the plea of a denial simpliciter and their implication due to enmity. 7. Two law points have been raised by the learned counsel appearing, on behalf of the appellants- one that the appellants Muhammad Hanif and Mehdi Khan, who had been placed in column No. 2, were summoned by the Sessions Court under section 190 (C), Cr. P. C. And, therefore, is was a statutory duty of the trial Court to inform the appellants that they were entitled to have the case tried by another Court and for this reason the entire proceedings were coram non judice qua the two appellants. Secondly, it has been contended that section 193, Cr. P. C. Was a bar to the jurisdiction of the Sessions Court to the direct summoning of the it appellants and, therefore, because of this reason too, the proceedings qua the two appellants Muhammad Hanif and Mehdi Khan were without jurisdiction. 8. The requirement to inform the accused that he is entitled to have the case tried by another Court arises only in a case when cogni--zance is taken of an offence under subsection (1), clause (c) of section 190, Cr. P. C. By a Magistrate. In Abdus Sattar Molla v. The Crown (PLD 1953 FC 145.), it was held that the jurisdiction exercised in summoning an accused whose name had been placed in column No. 2, is under clause (b) of subsection (1) of section 190, Cr. P. C. And not under clause (c). Falak Sher v. The State (PLD 1967 SC 425). This view has been reiterated in two recent cases by the Supreme Court. These are Falak Sher and others v. The State (2) and Noor Muhammad and others v. Muhammad Nawaz and others (1969 SCMR 271). Therefore, the argument based on the requirement of section 191, Cr. P.C. Has no substance. 9. As regards the second point, the learned counsel has relied upon Muhammad Aslam and others v. Natho Bibi (PLD 1977 Lah. 535) decided by our brother Abdul Jabbar Khan, J in which a view has
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been taken that the "Court" of Session is barred to take cognizance of any offence directly as a Court of original jurisdiction unless the same has been sent to it under section 190(3), Cr. P. C." The cited case is distinguishable on facts being a case in which a private complaint was filed directly before the Court of Session. It was, in routine, forwarded to the Additional Sessions Judge for disposal. The Additional Sessions Judge took cognizance of that complaint under section 200, Cr. P.C. And after holding a preliminary inquiry himself under section 202, Cr. P. C., found a prima facie case, and summoned the accused through non-bailable warrants: It is obvious that the mandatory condition that the cognizance is not to be taken "unless the case has been sent to it under section 190(3), Cr. P. C." was violated . However, the position is quite different in the case in hand. Section 193 (I), Cr. P.C. Reads as follows: - "193.-(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case as been sent to it under section 190, subsection (3)." (The underlining is ours) And subsection (3) of section 190, Cr.. P. C. Reads as under: -- "(3) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial." Bearing in mind the submissions of the learned counsel of both the sides, and the learned Assistant Advocate-General, we are of the view that the two appellants Muhammad Hanif and Mehdi Khan who were placed in column No. 2 of the challan submitted in the Court of the Ilaqa Magistrate, and which was sent to the Court of Session under subsection (3) of section 190, Cr. P. C. Could be summoned by the Sessions Judge on his taking cognizance of the offence. 1n taking this view, we have in mind the amendments made in the relevant law. Under the old law, in cases triable by the Court of Session, a Magistrate in the first instance, held an inquiry. The scope of such inquiry was limited to ascertaining whether or not there was evidence justifying the committing of the accused to the Court of Session for trial. In the absence of a prima facie case, the accused could be discharged by the Inquiry Magistrate (section 209, Cr. P. C.). An order cancelling the charge framed under section 210 and discharging the accused could also be passed by a Magistrate under subsection (2) of section 213, Cr. P. C. However, if there was evidence justifying the committing of the accused to the Court of Session for trial, he was so committed. Detailed evaluation of evidence was then done by the trial Court, which prepared its own record of evidence. Previously, an order committing the accused for trial by the Nigh Court or the Court of Session was trade (section 213, Cr. P. C.) and by virtue of section 220., Cr. P.C. The accused was commit--ted by warrant to custody for a period until and during the trial. The provisions relating to the commitment proceedings have now been omitted. This jurisdiction now stands substituted by another, which has been introduced by the addition of subsection (3) to section 190, Cr. P. C. Quoted above and the existing prescribed procedure is that the Magistrate is to "send the case to the Court of Sessions for trial". The distinction is quite obvious. It is no longer now the accused who is committed to the Court of Session for trial. Now it is the case that is sent to the Court of Session. Similarly, the words "unless the accused has been committed to it by a Magistrate duly empowered in that behalf" appearing in section 193, Cr. P. C. Have been replaced by the words "unless the case has been sent to it under section 190 (3), Cr. P. C." It cannot be argued that the words "accused", "offence" and "case" have been used to connote the same meaning. The word "case" or "offence" has certainly much wider concept or connotation than he word "accused" or "offender". Reading the wording of section 193, as it previously was, it is clear that the Sessions Court took cognizance of and tried only the accused committed to it by the Inquiry Magistrate. However,
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the word "offence" cannot be deemed to limit the jurisdiction to only such accused as are sent up to the Court of Session. Similarly, the word "case" comprehends more than the word "offence". "Case" may include `he matter of even those against whom, according to the challan, no offence was made out. For instance, the case of those placed in Column No. 2 and perhaps of those covered by clause (a) and clause (c) of subsection (1) of section 190, Cr. P. C., provided the allegations extending to them arise out of the same transaction which is the subject-matter of the case, sent to the Court of Session under subsection (3) of section 190, Cr. P. C. In our opinion, now that the Sessions Court is seized of the case in its totality, it can lawfully take cognizance even of allied matters. 10. The case Mir Fateh Khan Mir Pirbux Khan v. Emperor (AIR 1542 Sind 161) relied upon by the learned counsel for the appellants, when analysed properly, in fact, supports the view taken by us in the light of the new changes. The view expressed in that judgment by Weston, J. That "a Court of Session has no power to try any person, save in certain exceptional circumstances such as when contempt is committed before it, unless an order of commitment has been made in respect of such person---------------------------------------------is based on the reasoning that: -- "the wording of this section, which may be said to be a disabling section, differs materially from that of section 190 which gives jurisdiction to Magistrates to take cognizance of offences. Section 190 does not mention the accused. And it has been held that a Magistrate takes cognizance of an offence and not of the offenders, and that a Magistrate therefore, may add a person or persons to those accused mentioned in the complaint or Police report upon. Which the cognizance of the offence has been taken by him (17 S. L. R. 150------------..Section 193, on the other hand, shows that save when otherwise expressly provided by Code or by other law, the cognizance taken by a Court of Session is not merely cognizance of the offence, but is restricted to `the accused' in respect of whom an order of commit meat has been made by a competent Magistrate." The view taken in this case that cognizance was taken of the offence and not the accused, has also been taken in the cases reported as Dedar Bakhsh v. Syamapada Valakar (I L R 41 Cal. 1013) and Girdhari Lal v. King-Emperor (21 C W N 9501). Both these cases were referred with approval by Akram, J. In Abdul Sattar Molla v. The Crown (PLD 1953 FC 145). Following the principle enunciated in Mir Fateh Khan Mir Pirbux Khan's case, we find that the view being taken by us is quite consistent with it. The principle that a Magistrate took cognizance of the offence and not the accused alone, and it was within his competence to summon such of the accused also who had not been challaned, is now equally applicable to the Court of Session. While on this point, we would also like to indicate that it deserves proper examination and consideration whether the wording "except as otherwise expressly provided by this Code" appearing in section 193, can be deemed to cover the provisions of section 204, Cr. P. C. As the word "Court" has now been substituted for the word "Magistrate" in the latter portion. The word "Courts" according to section 6 of Criminal Procedure Code includes Courts of Session. Giving effect to the altered wording and the scheme, we do not think that section 204 is complimentary to the provisions of section 200 and limited to the cases of private complaints before a Magistrate. Section 204 is placed in a separate chapter (Chapter XVII) and is independent of Chapter XVI, which includes sections 200 to 203. If the intention of the Legislature was to make the two complimentary of each other and restrict it to a complaint before a Magistrate, there was no need for substituting the word "Magistrate" by the word "Court" in section 204, Cr. P. C. Proper effect of the word "Court" has to be noted, and a Court of Session is a class of Courts. We, therefore, do not rule out the possibility that a direct complaint before the Court of Session, be now competent, in a case sent to the Court of Session under subsection (3) of section 190, Cr. P. C.
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11. It has been argued, reading section 190 (3) and section 173 (3) Cr. P. C. Together, that when the Magistrate taking cognizance of case did not summon the two, accused, the learned Sessions Judge could not have summoned them. We have held in the early part of this judgment that under the altered law, the whole case is sent to a Court o t Session. Subsection (3) of section 173, Cr. P. C. Deals with the disposal of the bond, which is envisaged to have been executed under section 169, Cr. P. C. In the case in hand, the appellants were never arrested and never released on the execution of bonds. Therefore, the occasion for the matter being dealt under section 173 (3) did not arise. The only point left for examination is the meaning of the words "taking cognizance". According to the Shorter Oxford Dictionary, "proceedings" means to move onward, to go on with an action, a discourse, an investigation". It further means "the investigation or carrying on of an action at law, a legal action of process, any act done by an authority or a Court of law, any step taken in a case by either party''. In a Full Bench case of Lahore High Court reported as Bhai Kirpal Singh v. Risaldar Ajai Pal Singh and others (AIR 1928 Lah. 627) it has been held that the words "suit proceeding" and other words of similar connota--tion have different meanings in different Statutes and it is not possible to lay down a general rule of interpretation which may be applicable to all cases. In each particular case, the question has to be decided in reference to the context and that meaning is to be preferred, which will best fit in with it. The question as to what amounts to "taking cognizance of an offence" has bean dealt with by K. E. Chohan, J. In case reported as Syed Wajih-ul-Hassan Zaidi v. Station House Officer, Police Station City, Jhelum etc. (PLD 1979 SC 49) as follows: - "As pointed out in R. R. Chari v. The State (AIR 1951 SC 207) what is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under section 190(l)(a), Criminal Procedure Code he must not only have applied his mind to the contents of the petition, but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this chapter proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this chapter but for taking action of some other kind, e. g. Ordering investigation under section 156(3) or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence'. To the same strain are Badshah 'Mia and others v. The State PLD 1958 Dacca 598 and Narayandass Bhogwandas Madhavadas v. The State of West Bengal AIR 1959 SC 1118. In the later case it was held at page 1123 that as to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to--attempt to define what is meant by taking cognizance. Issuing off a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceedings under section 200 and subsequent sections of Chapter XVI of the Code of Criminal Procedure or under section 204 of Chapter XVII of the Code that it can be positively stated that he bad applied his mind and, therefore, had taken cognizance." In yet another case of Lahore High Court, which is a Full Bench judg--ment reported as Wazir v. The State (PLD 1962 Lah. 405) Kayani, C. J. Was pleased to observe as follows: - "We are of the opinion that it would generally be a question of fact whether at a certain stage a Magistrate has taken cognizance of the case when a police challan has been presented before him." In Ghulam Rasool v. Crown (PLD 1949 Bal. 17) it was held that: --
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"A Magistrate takes cognizance of an offence when he applies his mind to the suspected commission of offence." In Badshah Mia and others v. The State (PLD 1958 Dacca 598), which was a case emanat--ing from a private complaint, it was held that: - "A Magistrate takes cognizance of cases only if he applies his mind to proceed under section 200, Cr. P. C. In Wazir's case referred to above, it was held that: "The police report by itself, when received by the Magistrate, does not constitute the taking of cognizance, and it is reasonable to expect that something more will be done to show that the Magistrate intends to start-the proceedings." In Muhammad Nawaz Khan v. Noor Muhammad and others (PLD 1967 Lah. 176) it was held that: - "Before it can be said that any Magistrate has taken cognizance of an offence under section 190, Cr. P. C. Be must have applied his mind to the offence for the purpose of proceeding in a particular way. The expression `taking cognizance of an offence' means the Court deciding to proceed against the offender with a view to determine his guilt." In Ghulam Muhammad and others v. The State (PLD 1979 Quetta 1) after discussing the matter at length it was indicated that: - 'The word `cognizance' means taking judicial notice of an offence and when a Magistrate takes notice of an offence, he con--sciously applies his mind to the facts of the case with a view to find if a case necessitating trial of offender exists or not." A careful perusal of the dictionary meaning and the above-cited cases shows that the term "taking cognizance" is incapable of such a precise and allusive definition as may cover all the possible context and situations in which this term can be used. The term "taking cognizance" is co-related to the matter or case in hand. Generally speaking, it is a matter of fact, dependent upon the nature of the proceedings. Au accused may be produced before a Magistrate under section 167, --Cr. P. C. For obtaining remand. He is taking cognizance of the matter, or the…
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