P L D 1964 (W (PLP)

Dr. Abdur Rahim for Respondents. Date of hearing: 6th December 1963. One Wattan Khan, of village Samandur Titar Khel, Police Station Pezu, Bannu District, was murdered in his field lying at a distance of about a mile from the same village at about rotivela on the 22nd of January 1963. Akhto Jan reported the occurrence at the police station, wherein he charged Akram Khan, son of Jalal Khan, Gulzar son of Haider, Muhibullah, son of Karam Khan and Attaullah, son of Bacha Khan, for having committed the murder in furtherance of their common intention. On this report, a case under section 302/34, P. P. C. was registered. Within an hour of this occurrence an attempt was made at the life of Allahdad, a grandson of Akram Khan, one of the accused in the murder case, in the abadi of the village near his house. Allahdad himself made a report of the occurrence at the police station on the same day. In this report, he charged Ghulam, Zaitullah and Akhto Jan, for having made the attempt at his life in furtherance of their common intention. On this report a case under section 307/34, P. P. C. was registered. Both the cases were put in the Court of Mr. Faqir Ahmad Saeed Khan, Magistrate, First Class, exercising enhanced powers under section 30, Cr. P. C., for trial. He committed the accused of both the cases to stand trial in the Sessions Court, by his orders, dated the 31st of May 1963. The reason which the learned committing Magistrate recorded in the committing order for the commitment of the case under section 307/34 was that the case was a connected case of the murder case.

2. Mr. Agha Khan Baba Khan, Sessions Judge, D. I. Khan, suo motu referred the case to this Court for the quashment of the commitment order passed by the learned Magistrate in the case under section 307, P. P. C., on the ground that this was neither a cross case nor a connected case of the murder case, and the S learned committing Magistrate was competent to pass an adequate sentence on the accused, if he found them guilty, and also by committing, the case under section 307/34, P. P. C., the accused would be deprived by one chance of appeal. The reference was admitted to full hearing and notice. to the State and to the parties was issued.

3. Sayyed Ghazanfar Ali Shah, A. A. G, for the State and Dr. Abdur Rahim Advocate, counsel for the accused in the case under section 302/34, P. P. C., are present. None represented the accused of the case under section 307/34, P. P. C.

4. The learned Assistant Advocate‑General pointed out that an offence under section 307, P. P. C. is triable by the Court of Session as well as by a Magistrate with enhanced powers under section 30, Cr. P. C , and therefore, both the Sessions Court, as well as the Magistrate, had concurrent jurisdiction. He further urged that under section 207, Cr. P. C. discretion rests with the Magistrate whether he should try the case himself or commit the accused persons for trial to the Sessions Court. It would be better if section 207, Cr. P. C. is quoted here in verbatim:

"Procedure in inquiries preparatory to commitment.‑The following procedure shall be adopted in inquiries before Magistrate where the case is triable exclusively by a Court of Session or High Court, or, in the opinion of the Magistrate, ought to be tried by such Court." The words "in the opinion of the Magistrate" are pertinent for the present purposes. In case of the offence triable by the Sessions Court and a Section 30 Magistrate, there is discretion with the Magistrate, but in exercising this discretion he is only required to give adequate reasons first, but in case the offence is exclusive triable by the Sessions Court, then the Magistrate has no such discretion and he must commit the case to the Sessions Court. It is, therefore, clear that the learned Magistrate A in the instant case, no doubt, had a concurrent jurisdiction to try the case under section 307, P. P. C., but be had a discretion to try the case himself, or to commit it for trial to the Sessions Court, and if he had adopted the latter course, he was required to record adequate reasons which he had done in this case, and had, thus, committed no illegality in committing the case for trial to the Sessions Court.

5. The Assistant Advocate‑General further relied on section 215, Cr. P. C., which provides for quashing commitments under section

213. It provides that "a commitment once made under section 213 by a competent Magistrate, or by a Civil or Revenue Court under section 478, can be quashed by the High Court only, and only on a point of law." After quoting section 215, Cr. P. C., the learned Assistant Advocate‑General has urged that in the instant case, the learned committing Magistrate had not committed any error in law, and therefore the High Court was not competent to quash the order of commit ment. In his support, he further relied on Rex v. Matolay and others (A I R 1949 All. 1), wherein this question was considered by a Full Bench of the Allahabad High Court, consisting of four Judges. Waliullah, J., who delivered the main judgment, summed up very tersely his findings in paras. 51 and 52 of the judgment in the following words:‑ "

51. In the light of the above it must be observed that the reasons for which the superior Magistrate may commit a case to the Court of Session 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. The Legislature did not intend to provide that the Magistrate, otherwise competent, would have no power to commit a case to the Court of Session 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." "

52. After giving my anxious consideration to the relevant provisions of the Code and the case‑law, I have arrived at the conclusion that the view which has so far been generally accepted by this Court and, in particular, the view taken by the learned Judges in the case of King‑Emperor through Bachan Lai v. Subedar Singh and others 1946 A L J R at p. 137: A I R 1946 All. 365 : 47 Cr. L J 804 is not correct. On the contrary, I find myself in full agreement with the view taken by the Madras, Bombay, Lahore and Rangoon High Courts, and the Sind Chief Court, in the cases discussed by me in an earlier part of my judgment. To sum up, in my judgment, a Magistrate, otherwise competent, may commit any person for trial to the Court of Session or the High Court for any offence, but he 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." In this judgment the whole case‑law on the point was discussed and the Judges of the Full Bench had unanimously agreed with the conclusions arrived at by the learned Judge who delivered the main judgment. The learned Sessions Judge, Derajat, on the other hand, failed to point out that in committing the case under section 307, P. P. C. for trial to the Sessions Court, the committing Magistrate had committed any error in law. The fact that this case was not a connected, or a cross case to the case under section 302/34, P. P. C: is not an error in law, and therefore, the order of commitment cannot be correctly quashed by virtue of section 215, Cr. P. C. On the other hand the committing Magistrate was not wrong when he found that the case under section 307, P. P. C. is a connected case of the murder case, and this is an adequate reason for committing the case to the Sessions Court. The case under section 307/34, P. P. C. was alleged to be the result of the case under section 302/34, P. P. C. alleged to have been committed by the opposite party a little later. I cannot, therefore, see any force in the view of the learned Sessions Judge that the case in question is not a connected case. The reference is accordingly rejected. The record should be sent to the learned Sessions Judge for proceeding further, in accordance with law. S. Q./K. B. A. Reference rejected.