1990 P Cr (PLP)

ABDUL KARIM KHAN KUNDI, J.‑‑‑ Per F.I.R. No. 294 dated 5‑11‑1989, Police Station Piplan, District Mianwali a case was registered under section 382, P.P.C. read with section 14 of Offences Against Property (Enforcement of Hudood) Ordinance 1979 (hereinafter referred to as the Ordinance). During the course of investigation, Sher Abbas and others, the accused/respondents were arrested; their identification parade was held in which they were duly identified as culprits by the eye‑witnesses; afterwards weapons of offence were recovered from them and last stolen property was recovered at their pointation. A challan was submitted in the Court of Magistrate as against the accused/respondents under section 382/411, P.P.C. read with sections 14 and 17 of the Ordinance. The Magistrate after finding it a case under section 17 of the Ordinance and as such exclusively triable by a Court of Session sent the case to the Court of Session for trial without recording evidence: On receipt of the file, the learned Sessions Judge, Mianwali onward entrusted the case for trial to the Court of Additional Sessions Judge, Mianwali who did not proceed further in the case and passed orders observing that per accusations in the F.I.R., all the five prosecution witnesses were the victims and there were cited no other witness in the challan formulated under section 173, Cr.P.C. and that under section 7 read with section 16 of the Ordinance the proof of Harrabah shall require at least two adult male Muslim witnesses other than the victims of the theft and since two independent male adult Muslim witnesses were not available as such there could not be made out a case against the accused/respondents under section 17 of the Ordinance. He also observed that his Court could try the case against the accused/respondents under section 392/379/382/411, P.P.C. or any other offence only if the trial of the accused for offence under section 17 of the Ordinance would be taken up, as envisaged under section 24 of the Ordinance. He has consequently held that since in the case he could not charge the accused under section 17 of the Ordinance hence he was to entrust the case for trial on day to day basis to the Court of Magistrate 1st Class with enhanced powers under section 30, Cr.P.C.

2. The State assailed the aforesaid order of the learned Additional Sessions Judge in a revision under Article 203‑DD of the Constitution before this Court. After hearing Mr. Nazir Ahmad Ghazi, Assistant Advocate‑General Punjab, for R the State and Mr. Muhammad Iqbal Vehniwal, Advocate for the accused/respondents we have made up a mind to set aside the impugned order both on grounds of law and propriety for the reasons as below: ‑‑ (i) Accused/respondents were not summoned and charged and there was every possibility that they might have pleaded guilty to the charge of commission of theft liable to Hadd. The proof provided under section 7(a) of the Ordinance for the offence of theft liable to Hadd would have thus been made available. The implied assumption by the learned Additional Sessions Judge that the accused/respondents would not plead guilty to the charge of the commission of theft liable to Hadd seems to be unwarranted without there having been framed a charge against the accused and calling upon them to reply to the charge of theft liable to Hadd. (ii) Again it was yet to be ascertained through evidence at the trial that the five eye‑witnesses of the offence of theft were the victims. Two or more of them may have turned out to be independent eye‑witnesses of the occurrence of theft at the trial in order to fulfil the requirement of Clause (b) of section 7 of the Ordinance. The learned Additional Sessions Judge need not have hastened in assuming that all the five witnesses were the victims of the theft. (iii) The offence of Harrabah was committed on a highway in a passenger bus. There were some twelve passengers in the bus at the time of the commission of the offence. Even if the names of other prosecution witnesses besides the victims of the theft were not mentioned in the challan, the prosecution could still approach the trial Court at any stage to produce those independent witnesses as and when they are traced out and made available and in that situation the requirements of clause (b) of section 7 of the Ordinance would have been fulfilled. (iv) The second proviso of subsection (1) of section 24 of the Ordinance lays down that an offence punishable under section 9 or section 17 shall be triable by a Court of Session and not by a Magistrate authorised under section 30, Cr.P.C. while the first proviso thereof states that if it appears in evidence that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and to award punishment therefor be convicted and punished for that offence. Thus, the above two provisos rather suggest that an offender charged with an offence punishable under section 9 or section 17 shall in the first instance be tried by a Court of Session and not by a Court of Magistrate 1st Class with enhanced powers under section 30, Cr.P.C. and if the Court of Session, which is also competent to try offences under the P.P.C. finds in the evidence that the offender has committed a different offence under any1aw he may award punishment to the offender for the offence under the different law. (v) In 1985 P Cr. L J 2334 it was held, which we also approve, that Court of Session can try any offence under the Penal Code and can pass any sentence authorized by law if case is sent up for trial to that Court. It was further held that in case of offence triable exclusively by a Court of Session the Magistrate has no discretion but to send the case for trial to the said Court. However, in case of offence triable by the Court of Session as well by Magistrate with enhanced powers under section 30, Cr.P.C. the Magistrate has the discretion to send the case for trial or not and in exercising of his discretion he is required to give adequate reasons. Section 28, Cr.P.C. was referred conferring jurisdiction on Court of Session to try all offences under the Penal Code including those offences not having been prescribed as exclusively triable by Court of Session. Reference has also been made to 1988 P Cr. L J 905, which we also approve, that a Magistrate with enhanced powers under section 30, Cr.P.C. is empowered to try all offences not punishable with death but if the Magistrate during inquiry or trial finds that he cannot dispose of the case himself for one reason or the other, mainly the quantum of sentence he is empowered to impose on the offender, he can send the file to the Court of Session or the High Court. (vi) Last in a case of Harrabah on highway of the nature propriety also demands that the case should be preferably tried by a Court of Session and not a Court of Magistrate with enhanced powers under section 30, Cr.P.C.

3. In view of the above, we would accept the revision petition, set aside the impugned order passed by the Additional Sessions Judge, Mianwali on 13‑1‑1990 and send the case for expeditious trial to the Court of Sessions Judge, Mianwali himself, with direction not to entrust the case for disposal to any Additional Sessions Judge. N.H.Q./530/FSC Case remanded.