1992 PLP 1993 (MLD)

(a) Upon receiving a complaint of facts which constitute such offence; (b) Upon a report in writing of such facts made by any police officer; (c) Upon information received from any person other than a police officer, or upon his knowledge or suspicion, that such offence has been committed. (2) The Provincial. Government; or the District Magistrate subject to the general or special orders of the Provincial, may empower any Magistrate to take cognizance under subsection (1), clause (a) or clause (b) of Offences for which he may try or send to the Court of Sessions for trial. ' (3) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by Court of Session shall, without recording any evidence send the case to the Court of Sessions for trial:' "

193. Cognizance of offence by Courts of Sessions.‑‑(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190, subsection (3). (2) Additional Sessions Judges and Assistant Sessions Judges shall try such case only as the Provincial Government by general or special order may direct them to try or, as the Sessions Judge of the Division by general or special order may make over to them for trial." The above two provisions clearly show that the Court of Session is not art. original Court but it can take cognizance of a case only when it is forwarded to it by the Magistrate under section 190 read with section 193, Cr.P.C. The learned counsel has placed reliance on a number of cases. In the case of Mehar Khan v. Yakoob Khan (1981 SCMR 267) their Lordships in the Supreme Court have held as under: "

15. For the same reason a Court of Sessions to, which a case has not yet been sent by a Magistrate under section 190(3) and which has, therefore, riot yet taken cognizance thereof under section 190(1) cannot obviously commence the trial of the case. Evidently, therefore, it cannot postpone or adjourn the trial and consequently, would not be competent to pass an order under section 344(1), Cr.P.C." Also in the case of Mst. Saleem Akhtar v. Faisal and others PLD 1982 FSC 95 it has been held by their Lordships that a Sessions Judge cannot entertain direct. complaint for an offence under Offence of Zina (Enforcement of Hudood) Ordinance, 1979 unless the same is sent to him by a Magistrate by virtue of section 190 read with section 193, Cr.P.C. A similar view has been taken by their Lordships in different cases mentioned hereunder:‑‑ (i) In case of Nabidad v. State 1990 PCr.LJ 1000 my learned another Qaiser Ahmed Hamidi, J., has held that in exercise of inherent jurisdiction a High Court could certainly make all such orders which were necessary to do real justice but at the same time could not over ride express provisions of Criminal Procedure Code. In the same case it has been held by his Lordship that powers of original side in a criminal case vested with the Magistrate and High Court could not assume that jurisdiction unless the case was received by it in the manner provided by the Code. (Sections 190 and 193, Cr.P.C.) Also in the case of Farid v. Allah Wasaya PLD 1979 Quetta 156 and in the case of Mohammad Aslam and others v. Mst. Natho Bibi PLD 1977 Lah.. 535 the same view has been taken by the High Courts of Lahore and Quetta. As against this Mr. Hemraj, learned counsel for private respondents has referred to sections 529 and 530, Cr.P.C. and has submitted that these two sections provide for the instances of the irregularities which do not vitiate or vitiate the proceedings. He has submitted that in section 530 clause (k) it is provided that the Magistrates taking cognizance under section 190, subsection (1) clause (c) of offences would vitiate the proceedings and in no other cases. He has submitted that in the instant case the entertainment of the direct complaint by the Sessions Court is only an irregularity which is curable and does not vitiate the proceedings. He has placed reliance on the case of Muhammad Saeed and others v. The State and 7 others 1984 PCr.LJ 1373. In this case a learned Single Judge of the Lahore High Court has observed that no prejudice is caused to the party because the purpose of section 190(3) read with section 193, Cr.P.C. is that all the Magistrate is required to ascertain if the jurisdiction to try the case vests with the Sessions Court and if he comes to such conclusion, then he has simply to forward the case to the Sessions Court which Court ultimately takes cognizance. However, thorough reading of this judgment also shows that the learned Judge has observed that the Court of Sessions is not a Court of original jurisdiction as regards criminal cases; and that it could take cognizance of the case only when such case is forwarded to it by the Magistrate. In the present case it may also be observed that the Sessions Judge after entertaining the direct complaint, forwarded the case to the Additional Sessions Judge for the purposes of preliminary enquiry. Even this act of Sessions Judge is contrary to the provisions of section

193. As observed above, a Sessions Judge would have the jurisdiction in the case only when it is forwarded to him under section 1930), Cr.P.C. and , therefore, a Sessions Judge cannot pass any order on the direct complaint. He cannot even adjourn it or bring it ' on record or even transfer it to any of the Additional Sessions Judges. The said orders, therefore, are violative of the provisions of section 193(1), Cr.P.C. As regards curability of the irregularity if any, a reference may be made to the case of Mohammad Yakoob and 2 others v. Mohammad Ismail and another 1979 PCr.LJ Note 116 at p.

74. In this case a learned Single Judge of the Lahore High Court has observed that the cognizance of complaint by Sessions Judge in exercise of original jurisdiction is not permissible; and that non‑compliance of the mandatory provisions of section 190 would call for quashment of the proceedings; and that the said irregularity cannot be said to be curable as the same is not an irregularity of proceedings but of substance. In light of the above discussion, I am of the view that the provisions of sections 190 and 193, Cr.P.C. are mandatory and a Court of Sessions cannot entertain any direct complaint, not being a Court of original jurisdiction unless the same is forwarded to it by Magistrate under section 193(1), Cr.P.C. No Court of Sessions can pass any order on a direct complaint, not even an order of adjournment or transfer unless it attains the jurisdiction in the matter under section 193(1), Cr.P.C. In this view of the matter I allow this Criminal Misc. Application and order to quash the proceedings pending before the District and Sessions Judge, Mirpurkhas in Crl. Case No.21/91. The Sessions Judge is directed to return the complaint to complainant who may seek any other relief, if permissible under the law. N.H.Q./D‑103/K Proceedings quashed.