P L D 1980 Karachi 305 (PLP)

"The driver of the said taxi had also helped them. Accused Mr. Naimat Khan took me to his house. I continued trying to get free away from his grip, but some women, whose names were known afterwards as Khan Jan, Noor Jahan and Farook Jan were holding me till the Police came and freed me from those women and brought me to Police Station along with those women." The petitioner, after obtaining release on bail approached the Sessions Court in revisional jurisdiction for the quashment of the proceedings against her, but learned Vth Additional Sessions Judge, Karachi who heard the case dismissed the Revision Application; and it is on these facts and circumstances that the petitioner has now approached this Court for relief through this petition under Articlel99 of the Constitution. The submissions made by Mr. Sharif Khattak, learned counsel appearing for the petitioner in support of this petition are the same as those raised by him before the learned Additional Sessions Judge, and it is relevant to reproduce the view that has prevailed with the Additional Sessions Judge, Karachi: "Mr. Khattak submitted that the Police ought to have submitted report under section 159, Cr. P. C. instead of charge-sheeting the applicants and others under-section 170 read with section 173, Cr. P. C. to face their trial, His further submission is that by releasing Mst. Farooq Jan on her personal bond, the Investigation Officer in fact submitted a report under section 169, Cr. P. C. and so the Magistrate illegally took cognizance under section 173(3), Cr. P. C. His third contention is that while taking cognizance under section 190, Cr. P. C., specific orders in respect of Mst. Farooq Jan was to be passed as contemplated by section 173(3), Cr. P. C. and since no such orders were passed, it is to be deemed and presumed that the Magistrate did not in fact take cognizance in the matter and that he did not apply his mind. He has thus acted illegally and so the order passed under section 190(3), Cr. P. C. is liable to be quashed and the accused/applicants be discharged. His last submission is that, in any case, on the face of it no offence is made out and so the applicants are entitled to be discharged. Mr. Bajwa, learned A. P. P. has opposed this revision application. He submitted that no doubt some irregularities may have been committed by the Magistrate or the. Police Officer might have exceeded his jurisdiction but nevertheless it cannot be said that no cognizance has been taken and that applicants etc. are entitled to discharge. ??????? According to him, after the amendment of law and abandonment of committal proceedings, the Magistrates have no power even to grant bail in those cases which are exclusively triable by Sessions Court what to talk of discharging any or all the accused under amended section 190, Cr. P. C. placed before him and then he is simply to forward the same to the Sessions Court. No doubt the Magistrate is to verify that all necessary formalities have been completed but even if he deliberately or accidentally omits to see to it, the accused cannot claim their discharge. In this case ??????? Mst. Farooq Jan has been shown to be on bail or personal Bond and so the Magistrate should have passed some orders on it but if he has omitted to see to it, the case is not affected. I have considered the arguments advanced before me and gone through the relevant provisions cited before me. It is true that the I. O. released Mst. Farooq Jan by himself on taking her personal bond and that he did not specifically mention this fact in the chargesheet as require by sections 170 and 173, Cr. P. C. This Mst. Farooq Jan also neither appeared in Court nor was produced by the I. O. However, on coming to know about this omission on the part of

1. O., and which appears to be a deliberate action to support on the accused party, this Court summoned her and, after obtaining sufficient surety, released her. I am in full agreement with Mr. Bajwa that after amendment in Criminal Law, the Magistrate has no power but to transmit this chargesheet in all such cases which are exclusively triable by the Sessions Judge. I also agree with Mr. Bajwa that the release of Mst. Farooq Jan, on her P. R. Bond cannot be deemed to be a report under section 169, Cr. P. C., as contended by Mr. Khattak, as similar Bonds can also be taken under section 173, Cr. P. C. So far as the contention of Mr. Khattak that no offence under section 366 etc, is made out is concerned; suffice it to say that it is quite premature to give any opinion. Let some evidence be recorded and, according to Mr. Bajwa, if the applicants at any stage feel that no case is established or - made against them' they are at liberty to move for their acquittal under section 265-K, Cr. P. C. Since all the pleas raised by learned counsel for the petitioner in support of this petition have been already examined and rejected by the learned Additional Sessions Judge on very cogent grounds, there is hardly any scope for interference with the case by this Court in these constitutiona proceedings. It cannot be said that the order passed by the learned Additional Sessions Judge is without lawful authority, or not in accordance with law. Moreover, the petitioner who is an accused on a criminal charge is, in the ordinary course, to be tried in accordance with law and exercise of constitutional jurisdiction to quash the criminal proceedings against the petitioner on the facts and circumstances presented before us would hard be justified. There is, therefore, on merit in this petition and it is accordingly dismissed in limine. s. o. D.???????? Petition dismissed.