1968 P Cr (PLP)

(b) Penal Code (XLV of 1860), Ss. 302, 304 read with S. 300, Exception 2‑Death of deceased caused by violence‑Absence of analytical examination of plea of defence‑Case would be covered by S. 302 unless trial Court has other reasons to consider case to be covered by S.

304. Ch. Khalil‑ur‑Rahman for Petitioners: Syed Asad Hussain Zaidi for the State. The accused have been charged under sections 304/ 148/ 149, Pakistan Penal Code. It is contended that the petitioners acted in the right of private defence to the property and, therefore, the charge was not justified. In the alternative, it was argued that there had been a sudden fight and Nazir, Abdul Ghani and Abdul Majid, petitioners, could not be held vicariously liable for the alleged murder and the death of Maula Bakhsh, and that the charge, if at all, could be framed against them under section 323, P. P. C:

2. I have by my order of date in Criminal Miscellaneous No. 1151 of 1968, set aside the order dated the 1st of March 1968 of the learned Enquiry Magistrate by which the charge under sections 304/148/149, P. P. C., was framed, and have directed him to act in accordance with the procedure provided in Chapter 18, Criminal Procedure Code.

3. I may, however, observe that the learned Enquiry Magistrate has not given any reason as to why the charge was framed under section 3.4 and not under section

302. The primary duty of the Committing Court is to satisfy itself that there is a prima facie case against the accused persons. The prosecution evidence has obviously not failed altogether because in that case the Enquiry Magistrate could discharge the petitioners. The charge under section 304 by itself is a proof of the fact that there was a prima facie case against the petitioners. The Enquiry Magistrate could not examine and appreciate the evidence led before him. He has no jurisdiction to try an offence of murder. The Committing Magistrate cannot take upon himself to, adjudicate upon the points in issue which are raised before A him as to the right of private defence and as to who were trespassers and aggressors. In Mazharul Haq v. Ishaque Sardar (P L D 1962 S C 480) it was observed: "The existence of two opposing versions, on any point of fact arising in such an enquiry, or of opposing view?points on any question of law, is by itself a sufficient ground for the Magistrate to commit the case for decision to a competent Court. Where the accused persons do not raise any such conten?tion at the commitment stage, the duty to commit is of course, plain, since the offence of which a prima facie case is thus made out is beyond the competence of the Enquiring Magistrate to decide. A case is conceivable where the prosecution evidence fails altogether and quite plainly, to make out a prima facie case, and there, of course the Magistrate would discharge . . . . . . . . The correct position is that the matter is placed in issue between the parties, and becomes fit matter for trial by a competent Court, which alone can allow the benefit of `reasonable doubt' and then only after having heard the case in full." In the circumstances, when there was a prima facie case against the respondents, the learned trial Magistrate should have committed the case for trial and left it to the learned Sessions Judge to determine whether the plea of the respondents was worthy of any credence. As held in the above case, if there are questions of fact or of law at issue, in such a case the decision upon such issues can only be reached by the Court of Session. Their Lordships in the above noted case also held that "the function of examining a plea of private defence raised against a charge of a particular crime, can only be tried and adjudicated upon by a Court which is competent to try that particular crime. More?over, the adjudication involves a thorough examination of all the circumstances to determine at what stage, if any, the right of private defence arose, and when it ended, and whether in its exercise, there was any excess of the limits imposed by law and finally, if there was such excess, what punishment would be appropriate." In view of the law so declared, the learned Enquiry Magistrate has not dealt with the case in a correct way. Maula Bakhsh has died as a result of violence and in the absence of analytical examination of the plea of the defence, it would to a case under section 302, unless as observed in my order of date in Cr. M. 1151 of 1968, the Trial Magistrate had other reasons to consider the case to be covered by section 304, and then too the learned Magistrate must commit the case to the Court of Session, for trial, because it is alone competent to try such a offence. ???????????

4. On the above view of s the matter, this petition is dismissed. Petition dismissed.