P L D 1986 Lahore 113 (PLP)

‑‑ Ss. 190 (3), 193 & 439‑‑Penal Code (XLV of 1.860), Ss. 302', 307,." 326, 325, 148 & 149 ‑‑ Complaint Summoning of accused by Sessions Court‑Not a condition precedent for sending up case to it‑Only thing which a Magistrate was required to see, held, was that complaint was in proper form and facts stated therein disclosed commission of an offence triable by a Court of Session and if he was satisfied that facts disclosed commission of such an offence he was bound to send complaint to Court of Session. Muhammad Zawwar Shah for Petitioner. Malik Niaz Muhammad Javed Bodla for A,‑G., Punjab for the State. Date of hearing : 11th June 1984. This revision petition under section 435/439, Cr. P. C. is directed against the order, dated 23‑2‑1984 passed by the learned Sessions Judge whereby he dismissed the complaint filed by the petitioner.

2. Briefly stated the facts are that a case under section 148/302; 307/ 149, P. P. C., F.

1. R. No. 105 dated 17th August, 1973 was registered at P. S. Sahuka, District Vehari at the instance of Muhammad Ali against Farook and five others. Regarding the same occurrence, Abdul Ghani petitioner had filed a private complaint under section 148/325/326/.107/149, P. P‑ C. against Habib Ahmad, Roshin, Yaqoob and Hanif etc. directly in the Court of the learned Sessions Judge. Vehari on 21‑9‑1976. The learned Sessions Judge after recording the preliminary evidence summoned the accused mentioned in the said complaint to face trial. Before the accused appeared in the Sessions Court the successor of the learned Sessions Judge returned the complaint on 30‑11‑1976 for presenting the same before the competent Court as according to him the Court of Sessions could not take cognizance under section 193 Cr. P. C. without the case being sent up to it. Abdul Ghani then filed the complaint in the Court of A. D. M., Vehari who sent up the case to the Court of Sessions on 22‑8‑1977. He observed that since the story disclosed in the complaint was a counter‑version of the murder case pending trial before the Sessions Court, therefore, the com plaint should also be tried alongwith the said murder case. The learned Sessions Judge completed the evidence in the murder case but when he was to record the evidence in the complaint case an objection was raised before him on behalf of the accused that the Court could not proceed with the complaint. After hearing the learned counsel for the parties the learned Sessions Judge, Vehari dismissed the complaint on 23‑2‑1984 with the observation that the complainant/petitioner was at liberty to file a fresh complaint, if permitted by law. The grounds which weighed with the learned Sessions Judge was that the learned A. D. M. was influenced by the order, dated 21‑9‑1976 passed by the learned Sessions Judge whereby he had summoned the accused to face trial and that he had not applied his independent mind as to. whether the case was fit for sending up to the Court of Sessions.

3. Learned counsel for the petitioner contends that there was no defect in the order, dated 22‑8‑1977 of the learned A. D. M. whereby he had sent up the complaint to the Court of Sessions and, even if, the order regarding the summoning of the accused is held to be defective having been passed under the influence of the order passed by the Sessions Court no fault can be found with the order, dated 22‑8‑1977 by which the complaint was sent up to the Court of Sessions for trial alongwith the murder case.

4. I have considered the contentions raised by the learned counsel for the petitioner. Summoning of the accused is not a condition precedent for sending up the case to the Court of Sessions. The only thing which a Magistrate is required to see is that the complaint is in proper form and the facts stated therein disclose the commission of an offence triable by a Court of Sessions and if he is satisfied that the facts disclose the commission of such an offence he is bound to send complaint to the Court of Sessions as provided by section 190, subsection (3), Cr. P. C. and the Sessions Court after receiving such a complaint is to proceed in the manner as laid down under section 202, Cr. P. C No defect whatsoever in the form of the com plaint was noted by the learned Sessions Judge in the impugned order. The complaint bad to be sent up to the Sessions Court because the offence mentioned therein were triable by the said Court.

5. The learned A. D. M. had properly taken cognizance of the complaint and for genuine reasons had sent up the complaint to the Court of Sessions and as such the dismissal of the complaint by the learned Sessions Judge was not justified. The learned Sessions Judge had summoned the accused to face trial and thereafter he was not competent to dismiss the complaint though he could have acquitted the accused in the exercise of the powers conferred on him under section 265‑K Cr. P. C. In Ali Asghar v. The State (1982PCr.LJ415) the direction given by the learned Sessions Judge that the complaint be filed before the learned Magistrate in the first instance writ held to be not contrary to law. For the foregoing reasons, I accept the revision, set aside the order of the learned Session, judge and direct him to take up the complaint for necessary proceedings in accordance with law. M. Y. H. Petition accepted.