P L D 1967 Dacca 375 (PLP)

MURSHED, C. J.‑This is a reference under section 438 of the Code of Criminal Procedure made by an Additional Sessions Judge of Dacca and it arises out of the following circumstances: A complaint was made against the accused in a criminal case before a Magistrate of First Class at Dacca. The petition of complaint disclosed a case under section 325 of the Pakistan Penal Code. Upon an examination of the complainant the learned Magistrate issued summonses against the accused persons under section 325 of the Code, triable by summons procedure. It is not a warrant case, as erroneously described by the learned Additional Sessions Judge. On the commencement of the trial a number of witnesses were examined by the prosecution. Some of the witnesses made out a case under section 325 of the Penal Code. A medical man, who was also examined by the prosecution, deposed to the effect that the injury found on the complainant was likely to cause his death. This witness was not cross‑examined on behalf of the accused persons although an opportunity to that effect was given to them. There can be no manner of doubt that on the evidence, as stated above, as also on the complaint the case fell, fairly and squarely, within the mischief of section 325 of the Penal Code under which the accused were summoned. However, the learned Magistrate to whom the case was eventually assigned, actually proceeded to frame a charge although it was not necessary to do so in a summons case. He charged the accused persons under section 323 of the Code. This has given rise to the present reference. The learned Additional Sessions Judge, who has made the reference, was moved in his revisional jurisdiction with a view to make a reference for quashing the proceedings on the ground that a charge under‑section 323 fell within the purview of section 3 (1) (a) of the Conciliation Courts Ordinance, 1961 (Ordinance No. XLIV of 1961) hereinafter called, the Ordinance), which runs thus: "3. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) or in the Code of Civil Procedure, 1908 (Act V of 1908). (a) all cases falling under Part I of the Schedule shall, save as otherwise provided, hereinafter be referred to concilia?tion under this Ordinance, and no civil or criminal Court shall have jurisdiction to try any such case; . . . . . ." We may now refer to Part I of the Schedule appended to the Ordinance, Section A whereof includes criminal cases under section 323 of the Pakistan Penal Code. The learned Additional Sessions Judge, taking the view that inasmuch as a charge was framed against the accused persons under section 323 of the Code, the case fell within the mischief of section 3 (1) (a) of the Ordinance as quoted above. He, therefore, made a reference to this Court recommending that the trial pending before the aforesaid Magistrate be quashed, the said Court, in the opinion of the learned Additional Sessions Judge, having no jurisdiction to try a case under section 323 of the Code. We have perused the letter of reference and have heard learned Advocates appearing for the parties before us and we do not think that the reference should be accepted for reasons set out hereunder: If we advert to the language of section 3 (1) (a) of the Ordinance, it would be clear that the requirement of the Ordinance is that cases falling in Part I of the Schedule must be referred to conciliation under the Ordinance. It has also been specified in the aforesaid section that cases which fall under Part I of the Schedule must be tried by conciliation Courts constituted under the Ordinance and that no civil or criminal Court will have jurisdiction to try the same. This means that cases falling within Part I of the Schedule must be referred to conciliation under the Ordinance and that no civil or criminal Court shall have jurisdiction to try any such case. One is, therefore, required to decide whether a particular case falls under Part I of the Schedule of the Ordinance. In order to decide whether a case falls within the mischief of section 3 (1) (a) of the Ordinance, one must examine the case as a whole, and in its entirety, to ascertain its nature and character and then decide upon its own facts as to whether it falls within the mischief of that section or is outside its purview. If a case does not fall within the mischief of section 3 (1) (a), its provisions would not be attracted. We have stated the relevant facts of the case. The complaint being one under section 325 of the Penal Code, witnesses having also made out a case under the aforesaid section and such case being further fortified by the medical man examined on behalf of the prosecution, there can be no manner of doubt that the case itself falls within the mischief of section 325 of the Penal Code under which the accused were summoned for trial. Now, it is clear that section 325 of the Code is outside the purview of section 3 (1) (a) of the Ordinance. It is true that after examination of the prosecution witnesses the learned Magistrate embarked upon framing a charge under section 323 of the Penal Code. But, the fact that such a charge was, in fact, framed by the Magistrate would not alter the character of the case itself which falls within section 325, and not section 323, of the Code. Besides, the law permits a Magistrate to alter a charge framed by him at any stage of the trial. He could easily reconvert the charge into one under section 325, if he wanted to do so. In a summons case no charge need be framed and this is one of the distinctions between a warrant case and a summons case. Therefore, the question as to whether a case falls within one category or another has to be decided upon an examination of the intrinsic nature of the case itself and not upon its eventual result or the course it takes during the trial. A Magistrate may try an accused under section 325, or 327, but he may eventually convict the said accused under section 323 of the Code. The result of the trial may be a conviction under section 323, but it would not make the case itself one under section

323. We have said enough to make this proposition clear and we do not consider it necessary to discuss the decisions which have been referred to in the letter of reference addressed to us. Those decisions are not relevant to the facts of this case. For reasons stated above, this reference is rejected. It is directed that the trial of the accused persons pending before the learned Magistrate should now proceed to conclusion, and, in accordance with law. A. SUBHAN CHOUDHURI, J.‑I agree. K. B. A. Reference rejected.