1990 P Cr (PLP)

This revision application has been filed challenging the orders passed by the learned Sessions Judge, Shikarpur in Sessions Case No.31 of 1989 whereby the present applicant has been joined in the trial as accused person. The facts briefly are that on 22‑5‑1989 complainant Jaffar had lodged the report at Police Station Sultankot as Crime No.48 of 1989 under sections 302, 34, 114, P.P.C. and 13‑D Arms Ordinance to the effect that while he was going to his lands, he on the way saw accused Gulu, Sidik and Sohno (present applicant) duly armed with rifle and guns whom he met. The accused were going towards the cultivation of the complainant's cousin deceased Shaman who used to sleep there alongwith Abdul Hakeem. It is also the case of complainant in F.I.R. that after a little time he heard gunshot reports and cries of the deceased whereupon he ran towards the `Pehi' of the deceased Shaman and in the meanwhile P.Ws. Sahib and Gulzar also reached there. The complainant and the said P.Ws. saw the above accused running away alongwith their weapons. The present applicant is alleged to have said that they had murdered the deceased Shaman in order to take revenge of an earlier incident wherein the maternal uncle of present applicant had lost his fingers. It is further alleged in the F.I.R. that the deceased before his death had disclosed to the complainant and P.Ws. that the present applicant Sohno had fired at him with gun, which hit him in his chest while the co‑accused Sidik also fired at the instigation of the third accused Gulu. The police after usual investigation submitted challan in the Court of Joint Civil Judge and F.C.M., Shikarpur, which was sent to the Sessions Court. It is claimed that in the challan the name of present applicant was shown in Column No.2. An application was moved before the learned Sessions Judge under section 173(3), Cr Y.C. on behalf of the complainant and the learned Sessions Judge was pleased to pass the impugned order directing the joinder of the present applicant as co‑accused in the above case and further ordered the issuance of non‑bailable warrants against him. Being aggrieved present applicant has filed this revision application. I have heard Mr. Aijaz Ali Shah, learned counsel for the applicant. He has submitted that under section 173(3) of the Criminal Procedure Code the word used is "Magistrate" and therefore, it is only Magistrate who had the power to exercise jurisdiction under this provision and not the Sessions Judge. The learned counsel has further submitted that the name of present applicant was shown in column 2 and he was released on bail by the police and that this challan having been accepted by the Magistrate as it is, the Sessions Judge had no jurisdiction to pass impugned order. He has further submitted that the Sessions Judge could not pass the said order unless further evidence was recorded by him. He has placed reliance on the case Ali Muhammad v. Muhammad Hayat K L R 1984 Notes

127. He has also placed reliance on the case of Bashir Ahmad v. Alaqa Magistrate P L D 1980 Lah.

28. Mr. Ghayasuddin Baloch repelling the above contention of the learned counsel has submitted that the point as regards the powers and jurisdiction invested in the Sessions Judge has been fully considered and decided in the case of Ourban Ali v. Punhoon and 2 others 1982 P Cr. L J

52. The learned counsel for the respondent No.2 has further submitted that in ;be above‑cited case it has also been held that the Sessions Judge was competent to pass such an order joining the applicant/accused in the trial. I have considered the submissions of the learned counsel for the parties. The first case cited by the learned counsel for the applicant is only a Head Note and the facts of the case have not been mentioned therein. However, in the said case it was held that the order of discharge passed by a Magistrate is a valid order. Similarly in the other case of Bashir Ahmed v. Allaqa Magistrate which is cited by the learned counsel for the applicant the point involved was whether the Magistrate was empowered to pass the order of discharge on police report and it was held that the amendment in Criminal Procedure Code by Law Reforms Ordinance, 1972 did not affect the powers of the magistrate to cancel a case under section 173(3) of the same Code and that in such circumstances the discharge order passed by magistrate was held to be a valid order and further it was observed that complainant if aggrieved had an alternate remedy by way of filing a direct complaint. As against this in the case of Qurban Ali v. Punhoon, B.G.N. Kazi, J (as he then was) dealing with a case of similar nature and relying on the decision of the Hon'ble Supreme Court has observed as under. "The decisions of the Supreme Court referred to above make it clear that if the name of a person is mentioned in Column No.2 of the challan a Magistrate who takes cognizance of such report can proceed against such a person. The same considerations which applied in the case of the Magistrate when in cases exclusively tribal by the Sessions Court he had to hold committal enquiry apply to the Court of Session as the cognizance is taken by the Magistrate and the matter sent up to the Court; but the Magistrate is no longer required to hold enquiry before doing so, and evidence is now directly recorded by the Sessions Court." A further reliance was placed on an earlier decision of the Lahore High Court in the case of Sardar Ali v The State P L D 1966 Lah. 790 wherein it was observed as under: "When the Court becomes seized of the case relating to criminal transaction it becomes seized of the entire case. In other words, the Court obtains jurisdiction of persons involved in the transaction. The cognizance of the Court extends not only to the person against whom the challan is submitted, but to other persons who might be implicated therein." In the same case a further reliance was placed on the case of Muhammad Hanif and another v. The State 1979 P Cr. L J 1078 wherein it was held:‑ "The principle that a Magistrate took cognizance of the offence and not the accused alone, and it was within his competence to summon such of the accused also who had not been challaned, is now equally applicable to the Court of Session. While, on this point, we would also like to indicate that it deserves proper examination and consideration whether the wording "except as otherwise expressly provided by this Code" appearing in section 113, can be deemed to cover the provisions of section 204, Cr.P.C. as the word "Court" has now been substituted for the word "Magistrate" in the latter portion. The word `Courts' according to section 6 of Criminal Procedure Code includes Courts of Session, Giving effect to the altered wording and the scheme, we do not think that section 204 is complementary to the provisions of section 200 and limited to the cases of private complaints before a Magistrate. Section 204 is placed in separate chapter (Chapter XVII) and is independent of Chapter XVI, which includes sections 200 to

203. If the intention of the Legislature was to make the two complementary of each other and restrict it to a complaint before a Magistrate, there was no need for substituting the word `Magistrate' by the word "Court" in section 204, Cr.P.C. Proper effect of the word "Court" has to be noted, and a Court of Session is a class of Courts. We, therefore, do not rule out the possibility that a direct complaint before the Court of Session, be now competent, in a case sent to the Court of Session under subsection (3) of section 190, Cr.P.C: A further reliance is placed on the case of Muhammad Ishaq and another v. The State 1979 P Cr. L Note 96 at page 63 wherein it was further observed: "Where report of Investigating Officer showed the petitioner in column 2, a challan was submitted to the Court of Enquiry Officer for commitment proceedings, after the aforesaid consulted Law Reforms Ordinance came into force and the file was transferred to the Court of Session, it was held that prior to enforcement of Law Reforms Ordinance, 1972 section 193(1), Cr.P.C. imposed embargo on Court of Session to take cognizance of offence as Court of original jurisdiction, but this embargo having been removed, Court of Session can take cognizance of offence and summon all persons implicated:" From the above discussion I am of the view that after a challan has been sent up to the Court of Session, the said Court becomes seized of the case and can pass the order requiring any person connected with the case to be joined as accused and issue process against him. In these circumstances 1 find no substance in the present revision application, which is accordingly dismissed. N.H.Q./S‑550/K Revision dismissed.