2004 PLP 2334 (YLR)

Through this criminal miscellaneous petition the petitioner has challenged the order dated 22-1-2004 passed by the learned Additional Sessions Judge, Muzaffargarh whereby the learned Judge had dismissed the revision petition filed by Mst. Noor Bhari petitioner against the order dated 13-1-2003 passed by the learned Judicial Magistrate, Muzaffargarh, who in a complaint case, after recording the statement of three witnesses found petitioner and ten others prima facie connected with the commission of offence punishable under sections 337-A(ii)/337-F(v)/337-L(ii)/452/148/149, P.P.O. and summoned them as accused to face the trial.

2. Briefly the facts giving rise to this petition are that the complainant Taffazal' and others were booked in case F.I.R. No.56 of 2003, dated 13-2-2003 for offences under sections 302/324/34, P.P.C. registered at Police Station Rohailanwali in which they were challaned which was pending adjudication before the Court of learned Sessions Judge. After the registration of said case. Taffazal Hussain etc. also filed a private complaint regarding counter-version of same occurrence against petitioners and 10 others in the Court of learned Illaqa Magistrate who after recording a preliminary evidence summoned the petitioner and others as accused to face the trial for offences under sections 337-L(ii)/337-F(v)/337-A(ii)/452/148/149, P.P.C. vide order dated 13-10-2003. The petitioner filed criminal revision against the afore-mentioned order but same was dismissed vide the impugned order. Hence this petition under section 561-A, Cr.P.C. for setting aside the said order.

3. Learned counsel appearing on behalf of the petitioner contends that learned Magistrate had no jurisdiction even to record preliminary evidence as the complaint filed before him itself disclosed the commission of murder, therefore, case was exclusively triable by the learned Sessions Judge that the learned Magistrate while taking cognizance of the matter at the first instance should have examined the contents of private complaint and if the same discloses commission of an offence triable by the Court of learned Sessions Judge, then the Magistrate should have proceeded under subsection (3) of section 190, Cr.P.C. and without recording any evidence have sent the case to the Court of Session for trial. Further submits that the learned Magistrate has violated the provisions of section 190, Cr.P.C. by first recording preliminary evidence and then on the basis of the same had summoned the accused person to face the trial. Further submits that contents of private complaint filed by respondent No.2 disclosed the commission of offence under section 302/324, P.P.C. hence it was the duty of the learned Magistrate to send the complaint to the Court of Session for further proceedings; that the whole exercise by the learned trial Court was without jurisdiction and was unwarranted under the law. Lastly submits that revisional Court has also failed to appreciate this aspect of the case and has passed the impugned order without due application of judicial mind hence both the impugned orders are liable to be set aside.

4. I have heard the learned counsel for the petitioner at some length and also perused the record carefully. Bare reading of private complaint filed by Tafazzal Hussain respondent No.2 shows that he had filed the private complaint for prosecution of the accused only under sections 452/337-L(ii)/337-A(ii)/337-F(v)/ 148/149, P.P.C. against 11 persons which was exclusively triable by the Magistrate. The allegation was that when the complainant and other injured P.W. were present in their house all the accused while armed with lethal weapons trespassed into their house and attacked the complainant party injuring Wajid Ali, Mst. Akbar Begum the mother of the complainant, Muhammad Akram and when the complainant tried to save his mother he was attacked by the accused persons during the scuffle one of the accused fired on the complainant, which missed the target and the fire hit one of the accused person namely Irshad Ahmad who died at the spot. With regard to the same occurrence a case F.I.R. No. 56 of 2003 under sections 302/324/34, P.P.C. was already stood registered against the complainant party, in the complaint case at Police Station Rohailanwali. This fact also finds mention in the complaint filed by Taffazal Hussain complainant. Hence the objection taken by learned counsel for petitioner that the Magistrate was not empowered to take cognizance under section 190(3), Cr.P.C. is not sustainable. Learned Magistrate after recording a preliminary evidence came to the conclusion that all the accused mentioned in the complaint had been attributed an active and specific role in the commission of alleged offence. Medical report also strengthened the version of the complainant, therefore, found all the accused person prima facie connected with the commission of offence punishable under sections 337-A(ii)/337-L(ii)/337-F(v)/452/ 148/149, P.P.C., and in the interest of, justice had summoned all the accused named in complaint to face the trial. In the private complaint case, date, time and place of occurrence was the same as stated in the challan case. Parties were also the same, therefore, in view of settled principle of law both these cases were to be heard and tried by one Court. Accordingly learned Magistrate referred the case to the learned Sessions Judge vide reference dated 15-10-2003 for its further entrustment to the Court of Sajjad Ahmad Sheikh, Additional Sessions Judge-II, Muzaffargarh, as the connected murder case against the complainant and others was pending adjudication before the said Court. Learned Additional Sessions Judge found the order of learned Magistrate to be legal and had summoned the petitioner and others as accused persons to face the trial in complaint case. Perusal of the orders passed by both the lower Courts as well as case-law cited at the bar I am of the view that no illegality or irregularity has been committed either by the learned Magistrate or by the learned Additional Sessions Judge in passing the impugned order. Taffazzal Hussain complainant filed a complaint highlighting his grievance against the accused persons whereas the accused party in the complaint has already filed F.I.R. No.57 of 2003 under sections 302/324/34, P.P.C. wherein one person namely Irshad Ahmad has lost his life allegedly by the fire shot made by Taffazal Hussain complainant. Learned counsel for the petitioner has failed to point out any material irregularity or illegality committed by the learned lower Courts, warranting interference by this Court. I See no illegality or perversity of reasoning in the impugned orders. Accordingly this petition is dismissed being without any force. H.B.T./N-26/L Petition dismissed.