P L D 1963 (W (PLP)

MUSHTAQ HUSSAIN, J.-Muhammad Nawaz aged 35 years, Munir aged 30 years, both sons of Saleh Muhammad, Ahmi aged 30 years son of Adal and Nura aged 31 years son of Sultan, all Khokhars by caste and residents of village Jasrat, Police Station Chiniot, District Jhang have been convicted under section 148 of the Pakistan Penal Code and sentenced to undergo rigorous imprisonment for 2 years each by the learned Additional Sessions Judge, Lyallpur Division at Jhang by his order dated 31-3-62. Each one of them has also been convicted under section 302/149 of the said Code by the same order and sentenced to death. Munir and Nawaz accused also stood their trial under section 201 of the Code but have been acquitted of that charge. A nominal fine of rupee one each has also been inflicted upon them under section 302/149. The condemned persons have appealed against their convic tion and sentences and the case is also before us for confirmation of the death sentence under section 374 of the Code of Criminal Procedure. The learned counsel for the appellants has raised a preliminary objection which makes it unnecessary to recount the facts of the case. Learned counsel has submitted that the committing Magis trate had committed all the accused to stand their trial before the learned Sessions Judge under section 201 of the Pakistan Penal Code also. The learned trial Judge by his order dated 12-3-62 framed the charge afresh on the ground that the one framed by the committing Magistrate was defective. He proceeded to frame a separate charge under section 201 of the Code and omitted the names of Ahmi and Nura appellants from it. This act, it is contended, has the effect of quashing the charge under section 201 against these two persons. We are quite clear in our minds that the power to quash a charge framed by the committing Magistrate vests only in the High Court since the only section in the Code of Criminal Procedure which gives such power in section 215 and no other Court has been invested with this power by that section. Even the High Court can exercise this power only on a point of law. It is in any case not open to a Sessions Judge to quash the charge framed by the committing Magistrate and if he does so he is not simply committing an illegality but an act which is completely without jurisdiction. The application of section 537 to such circumstances is out of the question and if any authority be needed in support of the proposition, the decision of the Privy Council in the case of Subrahmania Ayyar v. King-Emperor (I L R 25 Mad. 61) is the leading one. Their Lordships' observations at page 97 of the Reports run as follows :- " The remedying of mere irregularities is familiar in most systems of jurisprudence but it would be an extraordinary extension of such a branch of administering the Criminal Law to say that when the Code positively enacts that such a trial as that which has taken place shall not be permitted that this contravention of the Code comes within the description of error, omission or irregularity." Dealing with a case where a Sessions Judge had ordered expunction of remarks from the judgment of a Magistrate, a Division Bench of the Rangoon High Court remarked as follows in A. H. Gandhi v. The King (43 Cr. L J 373 at 376). " It was clearly an assumption of authority which was not conferred on the Sessions Judge by the Criminal Procedure Code, and, therefore was an illegality, and the irrebutable pre sumption arises that the accused must have bees prejudiced thereby." In this view of the matter we must hold that the proceedings before the Sessions Judge were vitiated and must be set aside. We, therefore, set aside the conviction of the appellants and the sentence imposed upon them and remand the case to the learned Sessions Judge, Lyallpur Division for retrial according to law from the stage where the illegality discussed by us above occurred. ABDUL AZIZ KHAN, J.-Section 226 of the Code of Criminal Procedure is in the following terms :- " When any person is committed for trial without a charge, or with an imperfect or erroneous charge, the Court, or, in the case of a High Court, the Clerk of the State, may frame a charge or add to or otherwise alter the charge, as the case may be, having regard to the rules contained in this Code as to the form of charges." In order to appreciate the point involved in this case, it would be advantageous to reproduce the charges framed by the com mitting Magistrate :- " I, Muhammad Aziz-ud-Din, P.C.S., Magistrate 1st Class, Chiniot, hereby charge you (1) Muhammad Nawaz, (2) Munir, (3) Ahmi and (4) Nura accused as follows :- First.- Secondly.- Thirdly.-That you, on the same date, time and place, after committing the murder of Muhammad Sher deceased inten tionally carried away the dead body of Muhabbat Sher deceased and destroyed its head with the object of destroying, the evidence of said-murder." On the 12th of March 1962, the learned Additional Sessions Judge passed the following order :- The charge framed by the C. M. is defective. I therefore, frame it afresh . . . . . . . " The charge framed by the learned trial Judge reads as under :- " I, Saleem Mazbar, Additional Sessions Judge, Lyallpur Division, at Jhang, hereby charge you (1) Muhammad Nawaz and (2) Munir (accused) as follows:- That you, on or about the 29th day of April 1961, knowing that Muhabbat Sher deceased had been murdered, carried away his dead body from the place of murder, i.e., Chah Siddiqwala, in the area of village Hussain Khan, destroyed the head of the dead body somewhere after severing it, in order to destroy the evidence of the said offence, intending thereby to screen the offenders from legal punishment and thereby committed an offence punishable under section 201 of the Pakistan Penal Code and within my cognizance." It will thus appear that the learned trial Judge did not frame a charge under section 201/34, P. P. C. against Ahmi and Nura who had been so charged by the learned committing Magistrate. Thus, the charge under section 201 had been withdrawn or dropped against Al-mi and Nura. The learned Additional Sessions Judge could not do so under the provisions of section 226 of the Code of Criminal Procedure. In Rex v. Alimuddin and others (A I R 1950 All. 77), a Division Bench held : "The Sessions Court has no power to withdraw or drop altogether a charge framed by the committing Magistrate."

8. For the above reasons, this case has to be remanded to the learned trial Judge for a re-trial according to law from the stage where the illegality occurred and we order accordingly. Since, however, Mr. Saleem Mazhar has already expressed his opinion, it would be in the interest of justice if the case is now heard by a Sessions Judge other than Mr. Saleem Mazhar. We, therefore, transfer the case to the Court of the Sessions Judge, Lyallpur, for a re-trial. K. B. A. Re-trial ordered.