1969 P Cr (PLP)

HAMOODUR RAHMAN, J.‑

The petitioner was sent up for trial on a challan under section 302 of the Pakistan Penal Code but the enquiry ended only in a charge under section 304‑A of Pakistan Penal Code being framed. Against this charge the complainant went up under section 437 of the Criminal Procedure Code to the Additional Sessions Judge, Lyallpur who came to the conclusion that the order amounted to a discharge of the accused under section 302, P. P. C. and was therefore covered by the provisions of section 437, Cr. P. C. which empowered the Sessions Judge to order the lower Court to commit the case to the Court of Sessions. On examining the facts of the case the learned Judge was also convinced that the case was exclusively triable by the Court of Sessions and ordered accordingly. From the above order the petitioner came up in revision to the High Court of West Pakistan but a learned Single Judge relying on several decisions of this Court found no merit in the petition and dismissed the same. The petitioner now seek, special leave to appeal and it is contended on his behalf that when an enquiring Magistrate has framed a charge it cannot be interfered with by the Sessions Court, particularly, where the charge is legal and within the jurisdiction, of the Magistrate. 1f k support of this contention he has also relied on two decisions of this Court in the case of Hari Ballav Shaha Roy v. Gopi Balla, Shaha and another (PLD1959SC347) and Ahmad Khan v. The State (PLD1963SC45) which. were not, according to him, considered by the High Court. The first case was, of course, considered by the High Court but the learned counsel for the petitioner contends that. it has not been noticed that according to this Court a Magistrate holding a preliminary enquiry had the power "to sift and weigh evidence only for the purposes of determining whether or not it is a fit case to commit. It is contended that if that be so then the Magistrate having decided not to commit the Sessions Court should not hive interfered. In the next case this Court interfered to set aside an order of the High Court directing that a charge should be framed tinder section 302, P. P. C. and that the case should go for trial to the Sessions Court. The Magistrate had discharged the accused under section 253, Cr. P. C. It was in those circumstances that this Court allowed the appeal only to this extent that the case was to be returned to the Committing Court to be proceeded with according to law in the light of the observations made. In the present case the learned Sessions Judge followed this procedure, because, he sent back the case to the Magistrate's Court with the direction that he should commit the case to the Court of Sessions under the relevant provisions of law. Neither of these cases go to the extent of saying that a Sessions Court has not the power under section 437, Cr. P. C. to direct a Magistrate to commit a person for trial to the Court of Sessions. This section clearly gives to the Sessions Judge the power to order a person "to be committed for trial" for an offence in respect of which he has been improperly discharged. The power having been lawfully exercised by the Sessions Court, it was not for the High Court to interfere at this stage in revision nor is this a fit case in which this Court should interfere. This petition is accordingly, dismissed. Leave refused.