1981 P Cr (PLP)

The petitioner alongwith four other persons was challaned under section 304/148/149/294, P. P. C. and was sent up for trial. After e protracted trial the learned trial Magistrate on 16thApril, 1980 pasted an order that Sardara deceased, in the present case, had met his death as a result of injuries received by him at the hands of the assailants and as such a prima facie case under section 302, P. P. C. was made out against the accused. He accordingly referred the case to the Sessions Judge for trial. After hearing the arguments of the learned counsel for the parties, in the present petition .for quashment, it has been found that the aforementioned order is not based on any evidence on the record because the Medical Officer who conducted the post mortem examination of Sardara deceased bad stated in unequivocal terms while appearing as P. W. 1 that death of Sardara had not been caused by any injuries which were found on his dead body. The order of the learned trial Magistrate for referring the case to the Court of Session for trial under/section 302, P. P. C. is, therefore, illegal and is hereby set aside. Learned counsel for the petitioner has contended that the proceedings against the petitioner and his co-accused may be quashed as on the basis of evidence as already recorded by the Court it is not possible to hold them guilty of any offence. Learned counsel for the complainant, on the other hand, has pointed out that the prosecution has already concluded its case and that the case is ripe for final disposal and under the circumstances it would be more appropriate if the learned trial Magistrate disposes of the case after examining the evidence on record. I am inclined to agree with the learned counsel for the complainant and instead of passing any order in the present petition for quashment of proceedings I direct the learned trial Magistrate to conclude this case within one month. Since some allegations have been made against Mr. Salim Iqbal Shami, Magistrate, who was holding the trial and one of these allegations was that he proceeded with the trial of this case notwithstanding the order passed by this Court on 13th January, 1980 that he should first dispose of the petitioner's application under section 249-A, Cr. P. C., the case is withdrawn from his Court and is sent to the learned Sessions Judge, Gujranwala, who shall entrust it for disposal to some other Magistrate competent to try it. Muhammad Sadiq P. W. 6, Hassan Din P. W. 7, and Nazir P. W. 8, were examined by the learned trial Magistrate on 16thMarch, 1980 when the petitioner's counsel was not present in Court with the result that these witnesses could not be cross-examined by the petitioner. These witnesses shall be re summoned by the learned Magistrate to whom the case is entrusted for disposal so as to afford opportunity to the petitioner to cross-examine them. With these observations this petition stands disposed of. The file, however, shall be put up on 22nd March, 1981 for which date compliance/progress report shall be called from the learned trial Magistrate. Lower Court's record shall be sent immediately to the learned Sessions Judge Gujranwala, for further necessary action. Order accordingly.