1985 P Cr (PLP)

Facts in brief necessary for decision of this petition are as follows:‑ on 23‑9‑1980 at 2‑00 p.m. a case F.I.R. No. 27 under section 302/307/149, 148 and 109, P.P.C. was registered at Police Station Retra, District D.G. Khan on the statement of Atta Muhammad with an allegation that Ghulam Hussain alias Hasoo son of Allah Bakhsh etc. accused have murdered his brother Zakir Hussain and caused injuries to him on the same day at about 10‑00 a.m. at the instance of Akbar Shah and Munir Shah. The accused Ghulam Hussain alias Hasoo and others pleaded innocence. They controverted the allegation that the complainant party was tenant on the land belonging to Akbar Shah and Munir Shah and asserted that the complainant party caused injuries to some of the accused who had acted in the exercise of their right of private defence. The investigation was initiated by S.H.O. Police Station, Retra and then A.S.P. Headquarters, D.G. Khan. They found that Akbar Shah and Munir Shah were innocent. The investigation was, thereafter conducted by various agencies who came to the conclusion that Akbar Shah and Munir Shah were innocent and that only offence under section 304, P.P.C. was made out. However, no reason for this was given in challan (copy Annex. 'J'). The police, therefore, filed a challan under sections 304, 307, 149 & 148, P.P.C. vide report under section 173, Cr.P.C., dated 3‑1‑1982 in the Court of A.C./M.I.C. Taunsa Sharif. The said Magistrate on 20‑4‑1983, after briefly noting the facts according to the F.I.R. ordered:‑ It appears that Additional Sessions Judge, Dera Ghazi Khan noted some objections and sent back the case to the A.C./M.I.C. Taunsa Sharif for compliance and removal of objections. It may be stated that the learned counsel for the petitioners was not in a position to say anything about the nature of objections. The learned A.C./M.I.C. on 4‑6‑1983 again sent up the case to the Court of learned Additional Sessions Judge. D.G. Khan and while doing so passed the following orders:‑ The case against Ghulam Hussain alias Hasoo etc. accused came up for hearing on 19‑11‑1983 before Additional Sessions Judge, D.G. Khan. On that day, Ghulam Hussain etc. accused through their counsel filed an application stating therein that cross‑complaint is pending in the Court of a Magistrate at Taunsa, that it is proper that both the cross‑cases be heard and decided by one Court, and that the case against them was triable by a Magistrate with powers under section 30, Cr.P.C. It was, therefore, prayed that the case against them be transferred to the Court of said Magistrate. The learned Additional Sessions Judge after hearing the parties held that "the accused must face trial under section 302, P.P.C. besides other offences." He dismissed the application filed on behalf of the accused. It was held by him that "under the schedule appended to Cr.P.C. the offence under section 304, P.P.C. was made punishable to imprisonment for life and was exclusively triable by Sessions Court." It was further held that "so far the counter‑complaint is concerned, that was sent up by the Ilaqa Magistrate and was again sent to the Magistrate under section 202, Cr.P.C. for ascertaining the truth or falsehood of the same which has been received and entrusted to this Court and is now fixed for 3‑12‑1983 for argument. He, therefore, dismissed the application and proceeded to frame .the charge against the accused under sections 302/307/149 and 148, P.P.C. He commenced recording of evidence on that very day i.e. 19‑11‑1983. The statements of two prosecution witnesses were recorded. The Public Prosecutor gave up Ghulam Sarwar and Mukhtar Hussain P.Ws. as 'unnecessary. At that stage, another application was moved on behalf of the accused for stay of proceedings because the accused expressed their intention to file a revision in the High Court against the dismissal of their petition. The hearing of the case was adjourned to 2‑12‑1983 to enable the accused to file revision in this Court.

2. The learned counsel for the petitioners made the following contentions at the bar in support of this petition:‑ (i) The case against Ghulam Hussain alias Hasoo etc. was not exclusively triable by the Sessions Court and as such should not have been sent up for trial by the A.C./M.I.C. (ii) The Additional Sessions Judge could not have added or altered the charge after the case had been sent up to him for offences under section 304/307/149 and 148, P.P.C.

3. The precise argument of the learned counsel for the petitioners was that a case, in which challan is submitted in the Court of a Magistrate for offences not exclusively triable by the Court of Sessions, could not be sent up for trial to that Court. The learned counsel elaborated that under subsection, (3) of section 190, Cr.P.C. the Magistrate was not required to record any evidence though he was required to hold a limited enquiry in the matter in order to send up the case to the Court of Sessions; that the Magistrate is bound to commence recording evidence in a case not within the exclusive jurisdiction of the Sessions Judge and if the Magistrate once commences recording, evidence in Such case, he cannot, thereafter send up the case under section 347, Cr.P.C. for trial to the Court of Sessions being precluded by subsection (3) of section 190, Cr.P.C. It was, therefore; submitted that the impugned order, dated 19‑11‑1983 being illegal, charges framed under sections 302/149/, 307/149 and 148, P.P.C. against Ghulam Hussain alias Hasoo etc. be quashed. The learned Assistant Advocate‑General vehemently controverted the contentions on behalf of the petitioners.

4. The learned counsel for the petitioners cited the following judgments at the Bar in support of his contentions:‑ (i) Shames‑ud‑Din v. The State P L D 1958 (W.P.) Lah.

871. Shames‑ud‑Din and others were challaned by the City Police, Lyallpur under sections 302/452/149 and 148, P.P.C. on the allegations that they had constituted unlawful assembly with the common object of forcibly taking possession of shops situated in Wahid Market and had committed rioting armed with deadly weapons and in prosecution of the said common object had taken forcible possession of the shops and had committed murder of Seth Miraj Din. The case was originally instituted in the Court of a Magistrate Ist Class for a preliminary enquiry under Chapter XVIII of Code of Criminal Procedure. After recording evidence he framed charges under sections 147, 452/149 and 325/149, P.P.C. The complainant felt dissatisfied with the charges framed and filed a revision petition in the Court of Sessions Judge who stayed further proceedings. The revision was dismissed whereafter the complainant filed another Criminal Revision No. 460 of 1957 in the High Court which was dismissed on 1‑7‑1957 with the following order:‑ "This is really a matter relating to the sentence to be imposed. Dismissed. The A.D.M. may consider whether the case should not be tried by a Section 30 Magistrate." In view of this order, the A.D.M., Lyallpur transferred this case to a Magistrate with powers under section 30 who on 12‑8‑1957 re‑framed charges for the same offences for which they had been charged earlier by the Magistrate with Ist Class powers. The accused were sentenced to one year's R.I. under section 148, P.P.C. 6 years' R.I. under section 452/149, P.P.C. and 7 years' R.I. under section 325/149, P.P.C. All these sentences were ordered to run consecutively. In appeal before a learned Judge‑in‑Chamber of this Court it was contended that the trial stood vitiated inasmuch as Mr. Taqi‑ud‑Din Pal had no jurisdiction to re‑frame or alter the charges on 12‑8‑1957 so as to enable himself to try the accused because Mr. Khalid Mahmood, Magistrate Ist Class while framing charges under these sections had stated in the charges that the accused will be tried by the Court of Sessions. It was held by A.R. Changais, J. that the Enquiry Magistrate after enquiry had ultimately framed charges under sections 148, 452/149 and 325/149, P.P.C. and in view of the consideration that in case of conviction, he would not be able, being only a Ist Class Magistrate, to pass an adequate sentence upon the accused entered in the charges a direction that the accused will be tried by the Court of Sessions. However, the said Magistrate was transferred before he could make an order of commitment and was succeeded by a Magistrate vested with powers under section 30, Cr.P.C. who re‑framed the same charges and proceeded to try the case himself, in the circumstances no illegality was committed. It was held that before making an order of commitment the Magistrate holding the enquiry was empowered under section 213(2), Cr.P.C. to cancel the charge and discharge the accused if he is satisfied that there was not sufficient ground for committing the accused. It was further held that there is no provision in the Code of Criminal Procedure which prohibits a Magistrate holding enquiry from amending or altering the charge once framed. (ii) Ghulam Ahmed v. The State P L D 1958 (W.P.) Pesh.

20. Ghulam Ahmed was sentenced to 7 years' R.I. under section 304, P.P.C. for causing the death, of Ghulam Ali and to one year's R.I. under section 324, P.P.C. for inflicting injuries on Haq Nawaz P.W. by a Magistrate invested with the powers under section 30, Cr.P.C. on 30‑11‑1956. An objection was raised during hearing of the appeal th9t the offence under section 304, P.P.C. was triable exclusively by the Court of Sessions and, therefore, a Magistrate with powers under section 30, Cr.P.C. was not competent to try the accused. It was held by Abdul Hamid, J. that the powers of trial of a case by the Court of Sessions under section 28, Cr.P.C. are "subject to other provisions of the Code" and that a Magistrate invested with powers under section 30, Cr.P.C. is empowered to try all offences except those punishable with death and as such since an offence under section 304, P.P.C. is not punishable with death, the effect arising out of section 28, Cr.P.C. read in conjunction with Section 30 is that an offence under section 304, P.P.C. becomes triable by a Magistrate invested with powers under section 30, Cr.P.C. and ceases to be one triable exclusively by the Court of Sessions. (iii) Muhammad Aslam and others v. Mst. Natho Bibi P L D 1977 Lah.

535. This case pertained to a criminal miscellaneous petition for quashment of proceedings under section 561‑A, Cr.P.C. by Muhammad Aslam and others for the quashment of proceedings in a private complaint under section 302/34, P.P.C. filed by Met. Natho respondent in the Court of Additional Sessions Judge, Lahore. The said petition was admitted for hearing to consider a question as to whether the Court of Sessions Judge could entertain a private complaint falling exclusively within its jurisdiction when there was a complete Bar to do so under section 193, Cr.P.C. It was held by Abdul Jabber Khan, J. that the Court of Sessions will be barred to take cognizance of any offence directly as a Court of original jurisdiction unless the same had been sent to it under the relevant section 190(3), Cr.P.C. The learned Judge observed that when a complaint is filed, the Magistrate will scrutinize the form and will also see whether or not the facts stated therein, do disclose the commission of an offence which is ultimately triable by a Court of Sessions. If he is so satisfied, he will send the complaint to the Court of Sessions as provided under section 190(3), Cr.P.C. and the Sessions Court after receiving such complaint will proceed in the matter as laid down under section 202, Cr.P.C. (iv) Haji Kemal Khan v. Muhammad Naeem and others P L D 1979 Quetta

69. This was a criminal revision by Haji Kemal Khan to challenge an order of Additional Sessions Judge, Quetta by which Muhammad Naeem etc. accused were discharged in a complaint case instituted by him against them under sections 465, 466, 469, 471 and 474, P.P.C. The complaint was filed in the Court of Sessions Judge, Quetta on 24‑7‑1976 who forwarded the same for enquiry and report to a Ist Class Magistrate, Quetta. The Magistrate scrutinized the complaint and examined witnesses produced by him and recorded satisfaction that the case disclose commission of offences triable by the Court of Sessions. The complaint was sent to the Sessions Judge, Quetta. It was transferred to Additional Sessions Judge, Quetta who called upon the complainant to submit a list of witnesses and documents alongwith statements of allegations but latter without framing charge, passed order discharging the accused for the reason that no documents had been placed on record to establish allegation of forgery against the accused and that the case against them appeared improbable. In the revision, a grievance was made that the procedure adopted by learned Additional Sessions Judge was contrary to law which resulted in miscarriage of justice. The revision was accepted. It was held by Abdul Hayee Qureshi, J that a Magistrate in a complaint made to him regarding a case exclusively triable by the Court of Sessions, can neither hold enquiry nor issue process but has simply to send the case to the Court of Sessions for trial. It was held that the Court of Sessions was not a Court of original jurisdiction and can be seized of case only on its being sent by a Magistrate. It was further held that Sessions Court may in addition to hold enquiry itself or through a Police Officer direct investigation to be made by a Magistrate for ascertaining truth or falsehood of complaint. (v) Muhammad Yaqoob alias Mahnu v. Muhammad Ismail and another 1979 P Cr. L J

428. Muhammad Ismail respondent had filed a complaint against Muhammad Shafi and others under section 302/34/109, P.P.C. in the Court of Sessions Judge on 21-5‑1976 who transferred it to the Additional Sessions Judge who in turn after recording the statement of Muhammad Ismail complainant on 20‑7‑1976 sent the complaint to Ilaqa Magistrate for enquiry under section 202, Cr.P.C. The Ilaqa Magistrate conducted enquiry and sent his report on 10‑11‑1976 on the basis of which Muhammad Yaqoob alias Mahnu etc. accused were summoned under section 302/34, P.P.C. In a petition for quashment it was contended that the Additional Sessions Judge could take cognizance only after the case had been sent to him under section 190(3), Cr.P.C. which was not done in the instant case and as such subsequent proceedings were illegal. It was held by Gulbaz Khan, J. that the Court of Sessions was not empowered to take cognizance of offence as a Court of original jurisdiction unless the case was sent under section 190(3), Cr.P.C. It was further held that the difficulty was not curable under section 537, Cr.P.C. as a result of which the proceedings were quashed. (vi) Muhammad Hanif and another v. The State 1979 P Cr. L J 1078. This is a Division Bench judgment presided over by Javed Iqbal and Aftab Farrukh, JJ. of this Court and was referred to also by the learned Assistant Advocate‑General. The facts of this case were that Noor Muhammad complainant had lodged F.I.R. naming Muhammad Hanif, Mehdi Khan, Muhammad Boots and Mahmood Ahmad as accused for the murder of his brother Rana Muhammad Yaqoob. Muhammad Hanif and Mehdi Khan were found innocent and placed in column No.

2. The trial Court vide order, dated 23‑4‑1978 summoned them as well to face trial, alongwith the two other accused. The learned Additional Sessions Judge, Sialkot convicted all the four accused named in the F.I.R. vide judgment, dated 8‑7‑1978. Muhammad Hanif and Muhammad Boots were sentenced to death while Mehdi Khan and Mahmood Khan were sentenced to imprisonment for life. At the time of hearing of the appeal two points of law were raised. Firstly, that the appellants Muhammad Hanif and Mehdi Khan who had been placed in column No. 2 were summoned by the Sessions Court under section 190(c), Cr.P.C. and, therefore, it was the statutory duty of the trial Court to inform the appellants that they were entitled to have the case tried by another Court which was not done and for this reason the entire proceedings were coram non judice qua the two appellants. Secondly that section 193, Cr.P.C. was a bar to the jurisdiction of the Sessions Court to direct summoning of the appellants and, therefore, the proceedings qua the two appellants Muhammad Hanif and Mehdi Khan (mentioned in column No.2) were without jurisdiction. The learned Judges of the Division Bench did not sustain the first objection. As regards the second objection regarding section 193, Cr.P.C. it was held that the Sessions Court being seized of the case in its totality could lawfully take cognizance even of allied matters. It was, therefore, held that the Sessions Court was not barred to directly summon the accused placed in column No.2 and that such proceedings were not without jurisdiction. The case of Muhammad Aslam v. Nathu Bibi P L D 1977 Lah. 535 was distinguished. (vii) Bashir Ahmad v. Allaqa Magistrate Jaranwala and others P L D 1980 Lah.

28. Bashir Ahmad complainant had lodged F. I. R. regarding the murder of one Abdul Sattar against four accused (respondents in the criminal revision). During investigation, the police found them innocent and as such in a report under section 173, Cr.P.C., dated i6‑7‑1978 challaned different persons including Bashir Ahmad petitioner himself for the murder of Abdul Sattar and recommended for discharge of the accused/ respondents named as accused in the F.I.R. On the same day, the Allaqa Magistrate on the basis of the police report discharged them. Bashir Ahmad complainant who had lodged the report challenged the said order in a revision before the High Court. It was argued that the offence of murder being exclusively triable by the Court of Sessions, the Magistrate had no power to discharge the accused. It was contended that the Magistrates under section 190(3), Cr.P.C. act merely as a Post Office to send, without recording any evidence, the accused to the Court of Sessions for trial who could under section 265‑K acquit an accused at 'any stage of the case. It was held by Khalil‑ur‑Rehman, J. that the amendment in the Code of Criminal Procedure did not affect the powers of Magistrate to cancel a case under section 173(3), Cr.P.C. if the accused were found innocent in police investigation and in which the police did not intend to submit challan against them, and as such the order of discharge could not be questioned. It was further held that the aggrieved complainant should institute a complaint under section 200, Cr.P.C. in that situation. (viii) Ali Asghar v. Raja Khushal Khan 1982 P Cr. L J

415. In this case a case under sections 302/307/148 and 149, P.P.C. was registered at the instance of Ali Asghar against Khushal Khan and others for causing injuries to Subaidar Muhammad Inayat deceased, Ali Asghar complainant and Khalid Nawaz P.W. Khushal Khan accused was ascribed a specific role of firing at Ali Asghar complainant with gun and caused him seven injuries on his forehead and face. During initial investigation of the case, five accused named in the F.I.R. were held guilty. However, during a subsequent investigation by Crimes Branch, Lahore, Khushal Khan accused was found innocent and placed in column No‑

2. Ali Asghar, therefore, filed a complaint before learned Sessions Judge implicating all the five accused named in the F.I.R. This was entrusted to Additional Sessions Judge for disposal, but the same was returned back to the learned Sessions Judge for disposal of objections raised regarding competency in law to entertain the complaint. The Sessions. Judge returned the complaint to Ali Asghar complainant for presentation to Court of competent jurisdiction. It was accordingly filed before Magistrate Ist Class, Jaranwala, who after preliminary enquiry submitted the same to learned Sessions Judge on 26‑7‑1976. The Sessions Judge on 24‑8‑1976 issued notice to the accused for 8‑9‑1976. The complaint was subsequently entrusted to Additional Sessions Judge who ordered the file to be sent back to the Magistrate for his opinion if prima facie case was made out against the accused. In the meanwhile, Khushal Khan respondent was discharged by the Allaqa Magistrate on 18‑11‑1976. The Magistrate on 21‑12‑1976 reported that he was not in a position to give a concrete opinion whether a prima facie case was made out against the accused or not. The learned Additional Sessions Judge felt dissatisfied with this report and again sent back the case to the Magistrate with a direction that he should categorically state if the evidence on record would justify issue of process against respondent. The Magistrate opined that the complainant had failed to establish a prima facie case against Khushal Khan who had already been discharged by him on request by police. In view of this the Additional Sessions Judge declined to summon Khushal Khan respondent as an accused. The complaint was ordered to be filed with a rider that the order will not affect the proceedings in challan case. A revision was, therefore, filed. The questions involved in this revision were as to whether the Magistrate was competent in law to proceed with the complaint and examine preliminary evidence; was it lawful for the Additional Sessions Judge to solicit opinion of learned Magistrate whether a prima facie ease was made out against Khushal Khan or not; whether Magistrate was competent to order discharge of Khushal Khan and finally whether the order of filing of the complaint was without lawful proceedings. It was held by Muhammad Hassan Sindher, J. that after the challan had been sent up for trial in which Khushal Khan had been mentioned as suspect, the Magistrate had become functus officio and had lost of jurisdiction in the case. it was held that he had no jurisdiction to dispose of the application for discharge of Khushal Khan. It was further held that the Additional Sessions Judge should have recorded preliminary statement of the complainant for a decision whether process should be issued or not. (ix) Mian Safdar Khan and others v. The State 1981 P Cr. L J

113. This was a petition for bail on behalf of Mian Safdar Khan and others on the ground that though an incomplete challan was submitted in the Court of Ilaqa Magistrate, yet the same was not submitted to the Sessions Court under section 190(3), Cr.P.C. and that no valid remand orders having been passed by the Sessions Court under section 344, Cr.P.C. the detention of the petitioners was illegal which entitles them to bail. Rustam S. Sidhwa, J. while accepting the petition for bail held that a Magistrate taking cognizance of a case exclusively triable by a Sessions Court does not take cognizance of the same under subsection (1) of section‑ 190, Cr.P.C. for purposes of trial but for‑the purposes‑ of sending the case to the Court of Sessions for trial and by taking cognizance of the case for limited purposes has a right to undertake an enquiry into matters such as, to make sure whether police investigation is over or not; whether case is exclusively triable by a Sessions Court, whether a prima facie case appears against such of the persons whose names find mention in the challan and whether the challan and other papers/ documents are complete in all respects for transmission. (x) Mehdi Hussain Shah v. Malik Khizar Hayat 1983 P Cr. L J 1601. This was a constitutional petition seeking anulment of a revisional order of Sessions Judge, Gujranwala, whereby an order of a Magistrate on police report cancelling the case registered against Mehdi Hussain Shah petitioner was set aside. It was held by Fazle Mahmood, J. that a Magistrate exercising powers under section 173(3), Cr.P.C. is to pass proper order with application of conscious mind given to facts and material placed irrespective of the fact that no evidence in case is recorded by Court. It was held that the power of the Magistrate was not to be exercised arbitrarily. It was further held that the exercise of suo motu revisional jurisdiction by Sessions Judge in setting aside the order of cancellation of case was without lawful authority and of no legal effect. (xi) Mehr Khan v. Yaqoob Khan and others 1981 S C M R

267. The facts of the case were that Yaqoob Khan was an accused alongwith 3 others in an offence under section 302/34, P.P.C. for the murder of Muhammad Iqbal. An application for bail on behalf of Yaqoob Khan was filed in the High Court which was not pressed on merits but it was submitted on his behalf that Yaqoob Khan was arrested on 12‑12‑1978 and produced before the Ilaqa Magistrate within 24 hours who remanded him to police custody till 19‑12‑1978. Thereafter the Magistrate remanded him to judicial custody under section 344; Cr.P.C. from time to time. It was, therefore, contended on his behalf in the High Court that neither a complete nor an incomplete report under section 173, Cr. P. C. had been submitted before the Magistrate who could, therefore, not be said to have taken cognizance of the case under section 190(1), Cr.P.C. for the purposes of subsection (3) of the said section and as such was not competent to pass an order of remand under section 344(1), Cr.P.C. Secondly, that the order of remand under section 344, Cr.P.C. having not been passed by a competent Court to try the case, the detention of the accused was illegal which entitled him to grant of bail. The second contention was accepted by a Judge‑in‑Chamber in High Court who allowed bail to Yaqoob Khan. Mehr Khan complainant filed a petition for cancellation of bail in the Supreme Court. It was held by Aslam Riaz Hussain, J. sitting with Nasim Hassan Shah, J. that although a Magistrate is not required to hold enquiry under Chapter XVIII but that does not mean that he is to act merely as a Post Office and automatically send the case for trial to a Court of Sessions simply because a section relating to offence exclusively triable by the Court of Sessions has been mentioned by the police or the complainant in the challan or complaint brought by complainant. It was further held that he in fact was required on having taken cognizance of such a matter to enquire into the case and to apply his mind to whatever material is placed before him by the police or the complainant in order to determine whether the allegations made out a prima facie case, triable exclusively by a Court of Sessions. (xii) Rex v. Matoley and others A I R 1949 All. 1 (F B). (The learned Assistant Advocate‑General also referred to this case). This was a reference recommending that an order of commitment made by a Magistrate and the proceedings be quashed because the committed case was not exclusively triable by the Court of Sessions. The facts of the case were that a case under section 323, P.P.C. read with section 24 of Cattle Trespass Act was filed by Shyam Behari against Matoley and others. There was also a cross‑case against Shyam Behari and others under section 304, P.P.C. in respect of the death of Laloo. The Magistrate committed Shyam Behari and others to the Court of Sessions to stand their trial for an offence under section 304, P.P.C. He also committed the cross‑complaint by Shyam Behari for trial to the Court of Sessions only for the reason that it was a cross‑case to the case under section 304, P.P.C. which had already been committed to the Court of Sessions. The judgment in this case was written by Wali Ullah, J with which Sankar Saran and R. Dayal, JJ, agreed. It was held that the reasons for which the Magistrate may commit a case to the Court of Sessions are not in any way limited either to a case which he cannot try or to a case in which he cannot adequately punish the accused. It was further held that the Legislature did not intend to provide that the Magistrate otherwise competent would have no power to commit a case to the Court of Sessions except for one of the two reasons viz. (i) that he cannot inflict sufficiently severe sentence, and (ii) that he is not competent to hold a trial of the case. The conclusion arrived at in this judgment was that the view which has so far been generally accepted and in particular the view taken by the learned Judges in King Emperor v. Subaidar Singh and others A I R 1946 All. 365 is not correct. Their Lordships found themselves in full agreement that the view taken by the Madras, Bombay, Lahore and Rangoon High Courts and Sind Chief Court in the cases discussed in the judgment. Rejecting the reference it was held that the Magistrate must give adequate reasons for committing a person for an offence which is not exclusively triable by the Court of Sessions or the High Court.

5. The learned Assistant Advocate‑General placed reliance on Muhammad Shafi v. Crown P L D 1950 BJ

86. In this case Muhammad Shaft was challaned and convicted by a Magistrate Section 30, under section 304(1) for causing the death of his wife and her parmour when he saw both of them committing adultery in his house. An objection in appeal was taken that the trial Magistrate though possessed with enhanced powers, was incompetent to try the case. It was held by Abdul Aziz, C.J. that the Magistrate with enhanced powers was not incompetent to try the case though the more proper course for him was to commit such a case to the Court of Sessions. (ii) State of U.P. v. Khushi Ram A I R 1960 S C (Ind.)

905. In this case Khushi Ram was prosecuted before a Judicial Magistrate under section 7(i)(3) of the Prevention of Food Adulteration Act for selling adulterated milk without license for the third time. The Magistrate under the impression that his power as a Magistrate of First Class to impose sentence was limited by section 32 of the Code, committed Khushi Ram to stand his trial before the Court of Sessions. He was tried by a learned Sessions Judge who came to the conclusion that the offence had been committed by the respondent for the second time and not the third time. He further observed that the Magistrate was competent to award minimum punishment for the second offence. He, however, convicted Khushi Ram to one year's R.I. and a fine of Rs.2,

000. In appeal to the High Court an objection was taken before Mulls, J that the Judicial Magistrate had overlooked provisions of section 21 of the Act which made it lawful for the Magistrate of Ist Class to pass any sentence authorized by the Act in excess of his powers under section 32 of the Code. It was held by Mulls, J. that the Magistrate was competent to award all punishments and had no reason to commit the respondent to a Court of Sessions. It was held that the Court of Sessions could try only those cases which were legally and properly committed to it by a Magistrate. In view of this, the conviction of Khushi Ram was set aside and the case was remanded for trial and disposal by the competent Magistrate. The matter was taken by the State before the Supreme Court who did not agree with Mulls, J It was held by the Supreme Court that sections 21 of the Act was not a disabling provision and that it does authorise a Magistrate of the Ist Class to award sentences beyond the limits prescribed for him under section 32 of the Code and that it did not affect the provisions of sections 207 and 347 of the Code nor had it anything to do with the jurisdiction of a Court of Sessions. It was held by their Lordships that the section did not make commitment by a Magistrate competent to award the full sentence prescribed by the Act a nullity, nor does the section interfere with the jurisdiction of a Court of Sessions to deal with a matter committed to it in spite of its provisions. Their Lordships held that the Sessions Judge had full jurisdiction to try the case against Khushi Ram respondent. (iii) The State v. Ghulam Qadir and 2 others P L D 1964 (W.P.) Pesh.

53. In this case one Watan Khan was murdered regarding which Akhto Khan reported the matter to the police against Akram Khan, Gulzar and others on the basis of which a case under section 302/34, P.P.C. was registered. Within an hour of this occurrence, an attempt was made on the life of Allah Dad, a grandson of Akram Khan, one of the accused in the murder case. Akhto Khan, Ghulam and Zaitullah were named as accused in that case under section 307/34, P.P.C. These two cases were put, up in the Court of a Magistrate Section 30 for trial. He committed the accused of both the cases to stand trial in the Sessions Court. The reason for which the Magistrate committed the case under section 307/34, P.P.C. was that the said case was a connected case with the murder case. The Sessions Judge suo motu referred the case to High Court for quashment of the commitment order in the case under section 307/34, P.P.C. It was held by Muhammad Daood Khan, J. that in the case of an offence triable by the Sessions Court and a Section 30 Magistrate, there is discretion with the Magistrate to commit the case for trial by Sessions Judge but in exercising this discretion he is only required to give adequate reasons. (iv) Ahmad v. The State 1980 P Cr. L J

580. In this case Ahmad and his cousin Nazir were tried by an Additional Sessions Judge on a capital charge for the murder of Kamir. They were found guilty and sentenced to imprisonment for life. They were also convicted under the Arms Ordinance cases which had been sent up for trial alongwith the main murder case. An objection was taken that the cases under Arms Ordinance were exclusively triable by the Magistrate and as such the trial by the Court of Sessions was not legal. It was held by Khalil‑ur‑Rehman, J. that cases triable by a Magistrate exclusively could be sent under section 347, Cr.P.C. for trial to sessions Court to avoid conflict of judgments and for other recognized grounds. (v) Mst. Sheedan and 2 others v. The State P L D 1983 Lah.

71. In this case Mst. Sheedan, Zubaidah and Muhammad Aslam were found innocent by the police during investigation in a case under section 302/307/148/149, P.P.C. and placed in‑column No.2. The R.M. recorded the evidence of two witnesses in commitment proceedings. With the coming into force of the Law Reforms Ordinance in December, 1975, the case was sent up to the Court of Sessions against only those accused who were found guilty by the police and challaned. The Additional Sessions Judge summoned Mst. Sheedan etc. three accused who had been placed in column No. 2 of the challan, who faced trial alongwith other accused. They filed an application under section 265‑K, Cr.P.C. on the ground that the Sessions Court had no jurisdiction to proceed against them because their names were never sent up by the Magistrate under section 190(3), Cr.P.C. The learned Additional Sessions Judge withdrew the earlier order of summoning three accused and set them at liberty. The learned trial Judge recorded the evidence of the complainant and felt that prima facie case against accused Mst. Sheedan etc. who had earlier been set at liberty on 8‑2‑1973, was made out- from the evidence on record. He, therefore,' again summoned them as accused persons to face their trial. This order was challenged in the High Court. through a criminal, revision. It was held by Rustam S. Sidhwa, J. that as declared in 1979 P Cr. L J 1078 Muhammad Hanif v. The State, the Sessions Judge possessed powers to summon accused whose names were placed in column No. 2 of the challan. It was contended by the learned counsel for the petitioners that any case could be sent up for trial to the Court of Sessions by a Magistrate if there are sufficient reasons for the same. The precise argument of the learned counsel for the petitioners was that the cases which are not exclusively triable by the Court of Sessions can be tried by a Magistrate with enhanced powers under section 30 and that the offence under section 304, P.P.C. being not exclusively triable by Court of Sessions, the present case should not have been sent up for trial to the Court of Sessions. He referred to the provisions of section 30 and subsection (3) of section 190 of the Code of Criminal Procedure. In order to properly appreciate the arguments of the learned counsel for the petitioners it would be proper to reproduce below the relevant provisions of the Code of Criminal Procedure for ready reference:‑ "

28. Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried:‑ (a) by the High Court, or (b) by the Court of Sessions, or (c) by any other Court by which such offence is shown in the eighth column of the Second Schedule to be triable." "

30. In (the Punjab), the (North‑West Frontier), in Sind and in those parts of (the Provinces) in which there are Deputy Commissioners or Assistant Commissioners the (Provincial Government) may, notwithstanding anything contained in section 29, invest the District Magistrate or any Magistrate of the first class, with power to try as a Magistrate all offences not punishable with death." "

34. The Court of a Magistrate, specially empowered under section 30, may pass any sentence authorized by law, except a sentence of death or of . . . . imprisonment for a term exceeding seven years." "

190. Except as hereinafter provided, any Judicial Magistrate specially empowered in this behalf by the Provincial Government on the recommendation of the High Court may take cognizance of any offence:‑ (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 own knowledge or suspicion, that such offence has been committed. (2) the Provincial Government may, on the recommendation of the High Court, empower any Judicial Magistrate to take cognizance under subsection (1), clause (a) or clause (b) or clause (c), of offences which he may try or send for trial to the Court of Session." "(3) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Sessions shall, without recording any evidence, send the case to the Court of Sessions for trial." "193‑(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 cases 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." "346‑(1) If, in the course of an inquiry or trial before a Magistrate in any district, the evidence appears to him to warrant a presumption that the case is one which should be tried, or sent for trial to the Court of Sessions or the High Court, by some other Magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to the Sessions Judge or to such other Magistrate, having jurisdiction, as the Sessions Judge directs. (2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself or send the case for trial to the Court of Sessions or the High Court. "

347. If in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Sessions or High Court, he shall send the case to the Court of Sessions or High Court, for trial."

6. It may here be pointed out at the outset that sections 30 and 3 were omitted by Law Reforms Ordinance XII of 1972, subsection (2) of section 1 of which Ordinance provided that the schedule relating to amendments in the Code of Criminal Procedure shall come into force in any Province with effect from such date, not latter than the Ist day of January, 1973, as the Provincial Government thereof may specify in this behalf. This provision was amended by Ordinance No. LXIII of 1972 which omitted the words "Not later than the 1st day of January, 1973." The Government of the Punjab vide Gazette Notification, dated 26‑12‑1975 appointed 26th day of December, 1975 to be the day on which the provisions of the schedule of the Law Reforms Ordinance. 1972, mentioned in this notification relating to the amendments in the Code of Criminal Procedure were to come into force. In this notification items 13 and 16 relating to the amendments in the Code of Criminal Procedure were not included. The effect of this is that in Punjab the provisions of sections 30 and 34 still remain part of the Code.

7. I have considered the contentions of the learned counsel for the petitioners as well as the learned Assistant Advocate‑General in the light of various provisions of law and the judgments cited at the bar.

8. Section 30 of the Code of Criminal Procedure (hereinafter called the Code) is an enabling section. Firstly, it empowers a 1st Class Magistrate to try all offences not' punishable with death; secondly, it confers no power on such Magistrate to pass sentence; thirdly, on reading this section with section 34 of the Code, the Magistrate so empowered cannot pass sentence exceeding seven years; fourthly, it does not in any manner restrict, limit, curtail or oust the jurisdiction of the Court of Sessions to try any offence under Pakistan Penal Code and fifthly, it does not in any manner make the power of Magistrate invested with power under this section and the powers of the Court of Sessions mutually exclusive. It was contended that the power of the Court of Sessions under section 28 of the Code to try any offence under Pakistan Penal Code was "subject to other provisions of this Code" and if both sections 28 and 30 are read together, the Magistrate invested with power under section 30 will have exclusive jurisdiction to try an offence under section 304, P.P.C. Reliance was placed on the judgment of Ghulam Ahmad v. The State in support of this contention. I have considered this argument. It was held in Ghulam Ahmad's case that section 28 is to be read in conjunction with section 30 of the Code and as such, an offence under section 304, P.P.C. cases to be exclusively triable by the Court of Sessions and, therefore, becomes triable by a Magistrate Section

30. With respect I feel myself unable to agree with this proposition. Sections 28 and 30 of the Code cannot be read in conjunction with each other. The word "subject to other provisions in this Code" appearing in section 28 are not referable/ relatable to section 30 of the Code. Section 30, as stated above, is only an enabling section. It only confers enhanced powers on a Magistrate 1st Class. The words "subject to other provisions in the Code", in my humble opinion, refer to subsection (3) of section 190 and sections 193, 3461 and 347 of the Code which deal with the manner of taking cognizance of an offence by a Court of Sessions which is not a Court of original jurisdiction. A Court of Sessions can, therefore, try any offence under the Pakistan Penal Code and can pass any sentence authorised by law if the case is sent up for trial to that Court. In the case of an offence triable exclusively by a Court of Sessions, the Magistrate has no discretion and he must send the case for trial to that Court but in the case of an offence triable by the Court of Sessions as well as by Magistrate invested with powers under section 30, there is discretion with Magistrate to send the case for trial or not and in exercising this jurisdiction he is only required to give adequate reasons. Reliance for ‑this is placed on State v. Ghulam Qadir. In Ghulam Ahmad's case, it was held that the offence under section 304, P.P.C. was not exclusively triable by Court of sessions and could be tried by a Magistrate Section

30. In this case, it was not held that this offence could not be tried by a Court of Sessions. This. judgment, in my view, is of no help to the petitioners. A study of the Pakistan Penal Code would show that offence under sections 121, 132, 302, 303, 305, 364‑A and 396 and in certain circumstances offence under sections 194 and 307 alone provide maximum sentence of death and, therefore, can be classed as offences exclusively triable by a Court of Sessions. The other offences under the Pakistan Penal Code are punishable with imprisonment for life or ten years or seven years or various other imprisonments, but this does not mean that such offences cannot be tried by, or are excluded by section 30 of the Code from the jurisdiction of, the Court of Sessions. Section 28 of the Code confers jurisdiction on the Court of Sessions to try any offence under the Pakistan Penal Code. It was argued on behalf of the petitioners that the Magistrate is required to send the case for trial to the Court of Sessions under subsection (3) of section 190 of the Code without recording the evidence; that the Magistrate was bound to commence recording of evidence if the challan is not filed under offences exclusively triable by the Court of Sessions and that once the Magistrate starts recording evidence in a case, he cannot then send the case for trial to the Court of Sessions because he is precluded from recording evidence under subsection (3) of section 190 of the Code. I am not impressed by these contentions which can be considered from two aspects firstly, a Magistrate, who takes cognizance of an offence under subsection (1) of section 190 of the Code is not bound by the opinion of police or by the sections of Penal Code given in the challan reports under section 173 of the Code by the police. The Magistrate has to form his own opinion even without recording evidence after going through the material placed before him. The Magistrate though not required to record evidence after taking cognizance can still hold inquiry for limited purposes before sending the case under subsection (3) of section 190 of the Code for trial by the Court of Sessions. While examining the record and the material placed before him, the Magistrate will have to see firstly, whether all the documents like F.I.R., medico‑legal and post‑mortem reports, injury statement, inquest report, site plan recovery memos and Parcha Remand etc. have been appended with the challan or not; secondly, whether a list of witnesses to be examined on behalf of the prosecution has been furnished with the challan and that the case property including crime weapons etc. has been received with the challan to be sent alongwith the case to the Court of Sessions; thirdly, he may ask an accused if he wish to give a list of persons whom he may wish to summon in his defence during the trial of the case and fourthly, he will on the basis of the material placed before him, give an opinion whether a prima facie case triable by the Court of Sessions is made out against the accused or not. Reliance for this is respectfully placed on the judgment of Supreme Court in Mehr Khan v. Yaqoob Khan and judgment by this Court in Mian Safdar Khan v. The State. A reference in this behalf may usefully be made to paragraphs 1 and 2 of Part A of the Chapter XXIV of the High Court Rules and Orders Volume III. Pars. 1 provides that all cases punishable with death or in which a witness has accepted a tender of pardon under section 337, Cr.P.C. shall be committed to the Court of Sessions. Para. 2 lays down that the District Magistrate should see that all cases triable by Magistrate with enhanced powers under section 30 are disposed of by such Magistrates including himself and that only those cases should be committed to the Court of Sessions in which he considers such a course justifiable. It is further laid down in this para that a section 30 Magistrate should not try cases firstly, in which he takes action on his own know edge or information; secondly, cases of homicide which appear prima facie to be a case of murder but in which the accused may be able to establish an exception reducing the offence to culpable homicide not amounting to murder; thirdly, cases in which a punishment of seven years' imprisonment would be inadequate; and fourthly, other cases in which special grounds exist for rendering committal desirable provided that "he must be prepared to justify his! action in each case." No doubt these instructions pertained to the commitment of cases to the Court of Sessions under Chapter XVIII oil the Code, since omitted by the Law Reforms Ordinance 1972, but still these instructions contained in the High Court Rules and Orders can guide the Magistrates when they are required to examine the question as to whether a particular case be sent for trial to the Court of Sessions under subsection (3) of section 190 of the Code. The only difference between subsection (3) of section 190 of the Code and the provisions contained in Chapter XVIII of the Code is that under Chapter XVIII, the Magistrate was required, to hold inquiry by recording evidence but under the amended' law, the case is to be sent up for trial without recording of evidence. Some of the considerations which may weigh in the mind of the Magistrate in deciding the said question can be firstly, whether the offence is punishable with sentence of death and, therefore, H exclusively triable by a Court of Sessions; secondly, whether the cast. is a case connected with the main murder case; thirdly, whether the case is a cross‑case of the murder case; fourthly, whether he would not be able to inflict sufficiently severe or an adequate sentence in the facts and circumstances of the case; fifthly, whether the case is of public importance; sixthly, the cases in which a sentence more severe than he could inflict under section 34 appears to be called for; and seventhly, complex issues are involved or there is difficulty of ascertaining true facts or question of correct application of law is involved, which may make the trial before Court of Sessions more appropriate and, therefore, be sent up for trial to a Court of Sessions. I may state that the above are not the exhaustive considerations to send the case for trial to the Court of Sessions. Reliance is respectfully placed on Rex v. Motely. Secondly, if in a particular case, Magistrate taking cognizance under subsection (1) of section 190 of the Code initially forms a view that he should himself try the case and starts recording evidence but at a later stage forms an opinion that the case should or ought to be tried by a Court of Sessions, he will be able to proceed and act under sections 346 and 347 of the Code and send the case for trial to the Court of Sessions. I am not prepared to accept the argument that once the Magistrate has commenced the trial by recording evidence he would be barred /precluded from sending the case to the Court of Sessions for trial. The Lagislature has contemplated that the Magistrate should not only send the cases for trial which are exclusively triable by the Court of Sessions or High Court but also other cases which in the opinion of the Magistrate should‑not ought to be tried by such Court. The word "should" in section 346 and the word "ought" in section 347 are significant. These two sections were re‑framed and substituted by Law Reforms Ordinance, 1972. These words clearly refer to cases where it is the Magistrate who decides if the case is fit to be sent up for trial or not. In other words, these sections show that even in a case in which the Magistrate has concurrent jurisdiction to hold a trial, he is competent to send the same to Court of Sessions. The words "should" and "ought" show that there is 8 clear reference to the discretion and opinion of the Magistrate concerned: Similarly, the words "it appears to him" in these sections show that the Magistrate has full discretion at any stage of the proceedings before him to decide whether or not the case is fit to be sent up to the Court of Sessions. He must, however, in cases which are not exclusively triable by the Court of Sessions, give adequate reasons for sending the case for trial to that Court. Respectfully reliance is placed on Rex v. Motely. I am, therefore, of the view that any case under the Pakistan Penal Code, for reasons to be recorded, can be sent for trial by a Magistrate under subsection (3) of section 190 of the Code without recording any evidence and also under sections 346 and 347 of the Code if he had commenced recording evidence in a particular case. Reliance is placed on State v. Khushi Ram; State v. Ghulam Qadir and Ahmad v. The State.

9. Coming to the facts of the present case it may be stated that the case against the petitioners was registered under section 302/307/ 149/148, P.P.C. for the murder of Zakir Hussain and for causing injuries to Ata Muhammad complainant. The police, however, filed challan under section 304/307/149/148, P.P.C. vide report under section 173 of the Code, dated 3‑1‑1982. The case was sent up for trial to the Court of Sessions Judge, D.G. Khan by Assistant Commissioner/ Magistrate Ist Class, Taunsa vide order, dated 20‑4‑1983 and again after removing objections vide order, dated 4‑6‑1983. The petitioners did not challenge any of these orders. The case against the petitioners came up for trial before the learned Additional Sessions Judge, Dera Ghazi Khan on 19‑11‑1983. On that date, for the first time, an application by Ghulam Hussain and other petitioners was filed with a request that the case against them be sent back for trial to the Ilaqa Magistrate because firstly, the cross‑complaint was still pending there; secondly, that the offence is triable by a Magistrate Section 30; and that if tried by the Court of Sessions, they will be deprived of their right of appeal. This application was dismissed vide impugned order, dated 19‑11‑1983. The learned Additional Sessions Judge then proceeded to frame charge against Ghulam Hussain and 7 others under sections 148, 302/149 and 307/149, P.P.C. and proceeded to record evidence in the case after denial of the charges by the accused. The trial Judge recorded statements of two witnesses. The Special Public Prosecutor made statement giving up two more prosecution witnesses as unnecessary. At that stage, another application was moved on behalf of the accused for stay of proceedings because they wanted to file a revision petition in the High Court against rejection of their application, dated 19‑11‑1983. The proceedings were accordingly stayed whereafter the present petition was filed. I have gone through the record of this case. The case was initially registered under section 302/307/149/148, P.P.C. The police after investigation filed challan under section 304/307/149/148, P.P.C. Although no reason for doing so was given in the report under section 173 of the Code. but it appears that this was done on the defence plea of the right of self‑defence set up by the accused. The Magistrate was not bound to accept the opinion of the police nor was the same conclusive. He was required to form his own independent opinion for sending the case to the Court of Sessions. The case was rightly sent up for trial to the Court of Sessions because firstly, it was registered under section 302, P.P.C. and secondly, it was only the Court of Sessions who could decide whether the accused were guilty of murder or whether they had any right of self‑defence and whether they acted within the limits or exceeded the right of their self‑defence. The Courts could not be, bound down by the opinion of the Investigating Officers. I am, therefore, of the view that the Magistrate Ist Class, Taunsa, rightly sent the case for trial to the Court of Sessions. It is correct that the sent up orders, dated 20‑4‑1983 and 4‑6‑1983 were not in detail or clear in term, but these orders did convey the opinion of the Magistrate that the case was fit for trial by the Court of Sessions. I may observe that of late it has been noticed that the Magistrates while sending a case to the Court of Sessions for trial do not record a speaking order. They are required to examine the material placed before them to come to a conclusion whether the case‑ is one which should be sent for trial to the Court of Sessions or whether a case should or ought to be tried by the Court of Sessions. As such, they are required to give a positive opinion, keeping in view the material placed before them, by writing a speaking order giving adequate reasons for sending the case to the Court of Sessions.

10. It was contended on behalf of the petitioners that the case having been sent up for trial under section 304/307/149/148, P.P.C., the learned Additional Sessions Judge was not competent to add or alter the charge. This argument is without any force. The case having once been sent up for trial under any offence, the Additional Sessions Judge was competent to add or alter any charge at any time during the trial before judgment is pronounced. He is competent to pass all incidental, ancillary and allied orders in a case. As such, the alteration of the charge from section 304, P.P.C. to section 302, P.P.C. by the learned trial Judge was perfectly legal. Reliance is placed on a D.B. judgment of this Court. i.e. Muhammad Hanif v. The. State. A perusal of the impugned order would show that the cross- complaint with a report under section 202, Cr.P.C. was also sent up by the Illaqa Magistrate to the Court of Sessions for further proceedings according to law which was pending in the said Court for arguments on 3‑12‑1984. As such, the contention on behalf of the petitioners that the cross‑complaint was pending in the Court of Illaqa Magistrate and was not before the Additional Sessions Judge was not correct.

11. In view of the above discussion, I find no merits in this petition, which is accordingly dismissed. The office is directed to remit back immediately the entire record of this case to the Court of Additional Sessions Judge, Dera Ghazi Khan, who will conclude the trial of this case before 30‑9‑1985, under intimation to Additional Registrar of this Court. M. Y. H. Petition dismissed.