2009 PLP 1159 (YLR)

KHURSHID ANWAR BHINDER.--Through the present constitutional petition, Chakar Khan, petitioner assails the validity of order dated 7-7-2008 passed by the learned Additional Sessions Judge, Tandianwala District Faisalabad whereby, he while allowing the revision petition filed by respondent No.3 set aside the order dated 23-6-2008 passed by the learned Judicial Magistrate, Tandlianwala.

2. Briefly the facts of the case are that Muhammad Ramzan complainant/ respondent No.3 instituted a complaint before the learned Magistrate section 30, Tandlianwala alleging therein that on 30-4-2006, at about 10-30 a.m. he along, with Muhammad Altaf, Maqsood Ahmad and Ishfaq Ahmad went to his land situated in Square No.1 Killa Nos.1 and 2 Chak No.421/GB where all the accused along with 35/40 unknown P.Os. were present armed with Sofa and fire-arm weapons with object to murder them and to take possession of their land. As soon as they reached op the land Chakar Wattoo raised lalkara to murder the complainant and his nephew Abbas accused gave blow with Butt of Kalashnikov on the left hand of the complainant, accused Rustam Bhatti gave blow of butt of kalashnikov on the middle of thumb and index finger of left hand. Accused Chakar Wattoo gave blow with butt of kalashanikov on the backside of head of Ishfaq Ahmad, accused Chakar and Abbas started firing while remaining accused gave repeated blows with their sotas and butts of guns on the person of the complainant, Muhammad Altaf, Maqsood Ahmad, Ishfaq Ahmad and Muhammad Rizwan. Accused also snatched mobile, gold chain, watches and cash amount from the complainant as well as from the P.Ws. It was further alleged in the complaint that firstly accused persons caused injuries on the person of complainant and P.Ws. and thereafter they came near the house of Yaqoob Malik where all the accused persons to avoid criminal liability committed Qatl-e-Amd of their co-accused Abraz Ali in furtherance of their common object and in that respect false case F.I.R. No. 529/2006 dated 30-4-2006 under sections 302/148/149/109, P.P.C. was registered at Police Station Tandlianwala against the complainant and others. Police conducted partial and dishonest investigation and intentionally did not record statements of the complainant and the witnesses correctly. The learned Magistrate vide his order dated 23-6-2008 held that the complaint prima facie is triable by the learned Area Magistrate and the complainant was directed to produce cursory evidence against which respondent No.3 filed a revision petition before the learned Additional Sessions Judge, Tandlianwala who vide his judgment dated 7-7-2008 accepted the revision petition and set aside the order dated 23-6-2008 passed by the learned Magistrate, hence the present constitutional petition.

3. Learned counsel for the petitioner submits that since the offence under section 302, P.P.C. is not made out at all from the facts and circumstances of the private complaint, therefore, the learned Magistrate has rightly taken the cognizance of the matter and the learned Additional Sessions Judge has illegally upset the well reasoned order of the learned Magistrate. He further submits that under subsection (1) of section 190, Cr.P.C. the Magistrate was competent to take the cognizance of the matter as according to F.I.R. No.554/2006 no person was murdered, as such, the learned Magistrate has rightly passed the order dated 23-6-2008.

4. Learned counsel for respondent No.3 submits that since there was allegation of murder of a person in the private complaint and the provisions of sec tion 302, P.P.C. were attracted in the case, as such, the learned Magistrate was not competent to take the cognizance in the matter and the learned Additional Sessions Judge has rightly set aside the order passed by the learned Magistrate while allowing the revision petition. In support of his arguments he has relied upon the case of Abdul Waheed v. The State (PLD 1986 Lahore 81).

5. Learned Assistant Advocate-General while supporting the impugned judgment, submits that since the provisions of section 302, P.P.C. were attracted to the facts of private complaint, therefore, the Magistrate was not competent to take the cognizance in the matter under subsection (2) of section 190, Cr.P.C.

6. I have heard all the learned counsel and have also perused the available record. The perusal of private complaint instituted by respondent No.3 disclosed commission of offences under sections 337-A(i)/337-A(ii)/337-F(i)/337-F(ii)/337-H(ii)/337-L(ii)/354/302/148/149, P.P.C. and section 11-B of the Arms Ordinance, 1965. Subsection (2) of section 190, Cr.P.C. clearly lays down that 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 Court of Session for trial. Since the private complaint disclosed the Commission of offence under section 302, P.P.C. along with other offences, therefore, a Magistrate is legally bound to send the case to the Court of Session for trial Court under subsection (2) of section 190, Cr.P.C. Even a Magistrate is not competent to hold inquiry without specific order of Court of Session under section 202, Cr.P.C. In such a situation, the order of the learned Area Magistrate amounted to usurpation of jurisdiction vested in the Court of Session as the Magistrate is not competent to conduct an inquiry without subsequent order of Court of Sessions under section 202, Cr.P.C. If a private complaint is filed under the offence exclusively triable by the Court o: Session, the learned Area Magistrate has to send complaint to the Court of Session for trial as the authority vests with the Court of Session in order to determine the matter that whether the offence triable by the Court of Session is made out or not and whether the complaint is triable and the accused may be summoned or not.

4. From the afore-referred provisions of law, it is crystal clear that the Magistrate has no authority to take cognizance of offence exclusively triable by Sessions Court of original jurisdiction and thus cannot start inquiry on a private complaint same having not been transferred to him under sections 191 and 192, Cr.P.C. and he is not competent to hold inquiry without specific order of Court of Session under section 202, Cr.P.C. The learned Additional Sessions Judge has rightly set aside the order dated 23-6-2008 passed by the learned Magistrate:

8. Even otherwise, this constitutional petition is not maintainable against a revisional order as per law laid down in the case of Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 others (PLD 1993 Supreme Court 399).

9. For what has been discussed above, I find no merit in this constitutional petition which is hereby dismissed. H.B.T./C-4/L Petition dismissed.