1976 P Cr (PLP)

The present application has been filed by Mst. Muradi, Mst. Hussaina and Mst. Manya in the following circumstances. Respondent Muhammad Suleman filed a complaint against the three petitioners as well as three other accused, namely, Sukha, Satar and Kammu, in the Court of the Joint Civil Judge and 1st Class Magistrate, Mirpurkhas, alleging commission of offences by the three petitioner and 3 co‑accused under section 325, 504, 506, 147, 148/34, P. P. C. In the complaint it was alleged by respondent Muhammad Suleman that three petitioners and the co-accused resided in the neighbourhood of the complainant. All the accused including the petitioners are stated to be related inter se. It was alleged that on 6‑8‑1973 at about 8 p.m. there was a quarrel between the children whereupon the three petitioners alongwith the three male accused gave a beating to the complainant party. On a reading of the complaint it is amply clear that allegations against these three petitioners and the three co accused were of similar nature and it is also clear that the three petitioners were at least liable to be tried for having caused injuries to the complainant party in furtherance of common intention of all the accused. It seems the learned Magistrate held preliminary inquiry and passed an order taking cognizance against the three male accused, namely, Sukha, Safar and Kamu in respect of an offence under section 325/34 P. P. C. Although it is not stated in the order that the complaint against the three petitioners was dismissed, there can hardly be a doubt that the effect of the orders was dismissal of the complaint against the three female accused who are the petitioners in this case. Complainant respondent Muhammad Aslam was aggrieved by such order and filed a revision application under section 436, Cr. P. C. in the Court of the Sessions Judge at Mirpurkhas. The learned Sessions Judge examined the record and arrived at the conclusion that the Magistrate had acted illegally or at least improperly in refraining from taking cognizance against the three female accused who are the petitioners before this Court. It will be of benefit to reproduce a portion from the order of the learned Session Judge which reads as follows:‑ "It appears from the record that the evidence against the male accused as well as the female accused was of indivisible character and there was no scope for, making distinction between the two sets of the accused viz. the males and the females. Since the learned Magistrate found that a case for an offence punishable under section 325/34, P. P. C. was made out against the male accused, the female accused could not have been excluded. He did not record reasons for not taking cognizance against them and probably he could not find any reasons to justify their exclusion" The learned Sessions Judge, for good and sufficient reasons allowed the revision application and forwarded the record of the case to the District Magistrate "for taking cognizance against the female accused as well". The three petitioners have now invoked the jurisdiction of this Court in revision praying for quashment of the order of the Sessions Judge.

2. The learned advocate for the applicants was repeatedly called, but was absent and even the applicants were absent. I would normally in these circumstances have dismissed this application but since Mr. Nuruddin Sarki, learned counsel for the State and Muhammad Ibrahim Memon appearing for the respondent have made a statement before me that the final order of the learned Sessions Judge suffers from legal infirmity. I proceeded to hear the case. They pointed out that in exercise of powers under section 436 Cr. P. C. the Sessions Court could only order further inquiry into a case involving dismissal of complaint but could not make: a direction to the Magistrate to take cognizance against any particular accused. I entirely agree with such a contention. In these circumstances I dismiss this revision application but modify the order of the Sessions Judge to the extent that the Court now dealing with the case in‑pursuance of the order of the Sessions Judge shall hold a further inquiry and not take direct cognizance. As to the form or shape that further inquiry would take; would be in the discretion of the magistrate but I would only point out that the Magistrate shall keep in mind the observations of the Sessions Judge made in his order.

3. My attention has also been invited to the order of admission passed by my learned brother Jamaluddin H. Ahmed. J and it appears that the only point of law raised by the petitioners at the time of admission was that the Sessions Judge could not make a direction for taking cognizance but could only direct further inquiry into a case of dismissal of complaint. In these circumstances I dismiss this revision application subject to such modification as has been indicated in the forgoing para of this judgment. ??????????? Order accordingly