P L D 1967 Karachi 247 (PLP)

Respondent No. 2 absent. Date of hearing : 1st November 1965. This is a reference from the Sessions Judge, Dadu, recommending quashment of the conviction and sentence of the opponent Muhammad Ismail, and it arises in this way.

2. On 6-6-1964 the opponent Muhammad Ismail filed an F. I. R. at the Dadu Police Station against one Ali Hyder also shown as an opponent in this, reference and four others in respect of offences under sections 395, 397, 366, P. P. C. and 19-E, Arms Act. In the course of investigation it became apparent .to the Police that this was a false report and that the informant himself was aware that there was no just or lawful ground for such an allegation. The Police, therefore, applied for B Summary which was granted to them on 12-7-64 by the learned S. D. M., Dadu. On 29-7-1964 the S. H. O. Dadu Police Station filed a complaint against opponent Muhammad Ismail under sections 211 and 182, P. P. C. in the Court of the Resident Magistrate, Dadu, who issued process against the said Muhammad Ismail and proceeded with the hearing of the case against him. A charge was framed against the opponent Muhammad Ismail under sections 211 and 182, P. P. C. to which he pleaded guilty and was thereupon convicted and sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 40 or in default to undergo R. I. for 20 days. Against this conviction and sentence Ali Hyder went in revision to the Sessions Court, Dadu, and this revision application has resulted in the present reference.

3. It was contended by the learned Advocate appearing on behalf of Ali Hyder in the aforesaid criminal revision application before the Sessions Judge, Dadu which arguments have been accepted by that Judge that the procedure adopted by the Resident Magistrate, Dadu, was illegal and that, therefore, the proceedings in his Court from the stage of the framing of the charge should be quashed. It has been pointed out that opponent Muhammad Ismail had charged the applicants/accused Ali Hyder and others with the offence of dacoity, i.e. under section 395/397, P. P. C. An offence under section 395, P. P. C. is punishable with transportation for life. Under Schedule 2 of the Criminal Procedure Code an offence under section 211, P. P. C. where the false charge relates to an offence punishable with death or transportation for life is exclusively triable by a Court of Session. Hence, the Resident Magistrate, Dadu, had no jurisdiction to try and dispose of the complaint filed by the S.H.O., Dadu against opponent Muhammad Ismail. All he could do was to frame a charge against him and then to commit him for trial to the Court of Session. As mentioned above, these contentions wet accepted by the learned Sessions Judge, Dadu, who has embodied them in his letter of reference to this High Court.

4. I have heard Mr. Nooruddin Sarki and he supports the reference. He has also invited my attention to section 530 (p), Cr. P. C. which provides that if any Magistrate not being empowered by law in this behalf tries an offender his proceedings shall be void. Of the two opponents Ali Hyder and Muhammad Ismail I observe from the papers before me that both have been served with notices of today's hearing by Registered Post with Acknowledgment Due and the .acknowledgment slips in respect of this Court's notice to them bearing No. C/27647 have been received back after due service was effected upon the addresses. Respondent Ali Hyder is present in Court but respondent Muhammad Ismail is absent though called out.

5. I am in agreement with the recommendations of the Sessions Judge, Dadu, and the submissions of the learned State counsel. I, therefore, accept this reference and quash the con?viction and sentence imposed upon opponent Muhammad Ismail together with all proceedings in the Court of the Resident Magistrate, Dadu, from the stage of the framing of the charge against him. This case will go back to the Court of the Resident Magistrate, Dadu, who will draw up a suitable charge and commit the opponent Muhammad Ismail for trial to the Court of Session, Dadu. This reference is returned to the Sessions Judge, Dadu duly accepted. K. B. A.?????????? Reference accepted.