P (PLP)

ABDUL AZIZ C. J.‑‑

One Muhammad Shah challaned, tried and convicted by Mr. Noor Ahmad Hashmi, Magistrate, section 30, under section 304 (1) for causing the death of his wife, Mst. Bibi and her paramour Martian, while both were found by the accused committing adultery in the house of the latter on 30th of March 1949. He was sentenced to four years and six months rigorous imprisonment. This is an appeal before this Court. A preliminary objection was raised by the learned Crown Counsel that the Magistrate with section 30 powers was income petent to try that case. In support of this argument he quoted Punjah Record 1891 (Criminal) and I Punjab 1893 (Criminal). The first ruling was‑given by Sir Meredith Plowden and the principle judgment in the Full Bench case was also written by the same learned fudge and in agreement with Mr. Justice Riwaz Mr. Justice Roe however, disagreed with his colleagues and took a contrary' view. According to the first ruling and the subsequent Full Bench ruling the learned Magistrate; was incompetent to try this case. The view of Sir Meredith, Plowden in both the cases was that, according to the Criminal Procedure Code such a 'case was exclusively triable by the Sessions Court consequently section 30 Magistrate, was not' competent to take up that case. His further argument was that whoever causes the death of a person is primarily liable for murder, i. e., of an offence under section 302,'Indian Penal Code and section' 304 (1) comes into play 'only when the accused plead, an exception given under section 300, Indian Penal Code. As a Magistrate with section 30 powers is incompetent to fry 'the case tinder 'section 302 consequently. he is incompetent to decide whether the case of the accused falls under .section 304 (1). Such a decision rests within the province of the Sessions ‑Judge and to entrust the decision of this point to A section 30 Magistrate would be tantamount to allow him to encroach upon the powers of a Sessions Judge. Mr. Justice Roe definitely, disagreed with this proposition of law, and his argument was that under section 209 of the Criminal Procedure Code, the Magistrate holding an enquiry is competent to discharge an. accused person, if he fords that there are not sufficient grounds for the trial of the accused person. Not only that but the Magistrate is equally empowered under the same section to try an accused person for Any lesser offence. The words of the section which appear to rue relevant in this connection are:‑" Such Magistrate shall, if he finds that there ate not, sufficient grounds for committing the accused person, for trial; before recording reasons and discharge him, unless‑it appears to the Magistrate, that such person should be‑tried before himself, or some other Magistrate, in which case be shall proceed accordingly ". Mr. Justice Roe in his' referring order to the Full Bench, had adopted this view and he maintained the same as a member of the Full Bench. He went so far as to state that, in cases of this nature the Magistrate hail not to sit with eyes shut and to Charge the 'accused with an offence with which from the facts on the file he could not be charged. The words of the learned judge, are to the effect that the Magistrate says that he charges the accused with an offence; believing that he cannot be charged with ‑that offence. 'According to him' therefore; a Magistrate with section 30 powers was competent .to say that an accused person is guilty of an offence under section 304 (1) and ‑conse quently triable, by him. I should unhesitatingly observe that ordinarily the view of the Full Bench as matter, of course should command more respect than the view of a learned Judge in Chambers. 13ut I find that the same question arose once before Lahore High Court, and‑ then before the Judicial Commissioner. N.W.F. P. In 1937 Lah. 217 the, ruling referred to above, it was held that under section 209 Criminal Procedure Code, the Magistrate had jurisdiction to decide, whether the offence was triable by the Sessions Court or was triable by himself. There was nothing to show that the Magistrate snatched at any jurisdiction or perversely held that the offence was one triable by himself in order to minimise the offence. In Mir Alam v. Emperor 69 I.C. 454, a similar question bad arisen and reliance was placed on two Lahore Chief Court rulings quoted above, and also on a ruling of the same Court quoted as No. 14 of 190 in support of the contention that Magistrate with section 30 powers was incompetent to try an offence under section 304 (1). In dealing with this question and after consideration of the rulings referred above the learned judicial Commissioner observed, " with the utmost respect to the rulings I stave quoted, and for the ruling of my learned predecessors this Court, I am unable to accept the view that the law as stands goes so far as to lay down that a District Magistrate cannot legally try a case under section 304 (1), Indian Penal Code. In the first place he is under section 30, Criminal Procedure Code empowered " to try all offences not punishable with death ", and section 304 (1) Penal Code, is an offence not punishable with death. The argument that it is solely for the accused to prove the benefit of the exceptions seems to be to overlook the general principles of law that the accused may benefit by the prosecution evidence. Section 105 of the Evidence Act on which considerable stress was laid in Full Bench Ruling of the Punjab Chief Court, lays down that "burden of proving general or special exceptions in the Indian Penal Code lies upon the accused and the Court should presume the absence of such circumstances ". Now, I cannot believe it possible that the Court is bound to presume the absence of circumstances which it considers that the prosecution evidence itself proves to have been present. A case somewhat parallel to the present one occurred when not only did tae Magistrate consider that the prosecution evidence itself proved that the offender had been deprived of self control by grave and sudden provocation, but the prosecution commenced their case in Court by stating that these circumstances were admitted and that they only proposed to prosecute the accused under the first part of section 304, Indian Penal Code. " I am aware that the judicial Commissioner of this pro vince while criticizing the irregularity of the Magistrate's pro ceedings did not think it necessary actually to quash the con viction, inasmuch as no injustice had resulted. It seems to me extremely difficult to hold that a Magistrate is bound to commit the accused to Sessions on a charge of murder, when he himself holds that no charge of murder had been established. It can be said of course that the charge of murder is established before the accused had made out his claim to the benefit of the exception, but this is assuming a chronological sequence of events, which in many cases is not ‑justified. As in the case I have alluded to above, the clearly may be instances where the recognition of the exceptions precede the attempt to prove other facts connected with the case. In such a case I fail to see how it can be said that " the charge of murder has ever been established ". For this reason it is clear to my mind that there may be cases where District Magistrate is within his powers if lie convicts a person under section 304 (1) Indian Penal Code, although there can be no doubt of the general principle that it is more proper for him to commit such a case to the Sessions. The learned judicial Commissioner, therefore, refused to quash the Magistrate's proceedings as ultra vires. He however held, that if it were necessary in the ends of justice to direct that the accused should. be committed for trial to the Sessions, it would be open to the Courts to make such directions under section 423 of the Criminal Procedure Code. In that case as no injustice had been committed he saw no reason to do so. The survey of all these rulings lead me to the conclusion that it cannot be said under the law that a Magistrate with enhanced powers is incompetent to try a case under the first part of section 304 of the Penal Code, but the more proper course for him is to commit such a case to the Sessions. In a case however where the prosecution commences their case in Court by stating that the offender had been deprived of self‑control by grave and sudden provocation the Court does not commit any irregularity in trying that case. In the present case the prosecution‑ itself had placed the challan in the Court of the Magistrate alleging that the case fell within the provision of section 304 (1) Indian Penal Code, and the circumstances and the evidence in the case indisputably lead to the same conclusion. In such circumstances, I would treat it an injustice to the accused to quash the proceedings in the Court of the Magistrate, and to direct his commitment to the Sessions Court. Having disposed of the preliminary objection the next question is whether it is a case which warrants reduction in sentence. The learned Crown Counsel has admitted before me that the sentence is heavy and in support of himself he has quoted 1939 Lah. 471 in which a sentence of 3 months rigorous imprisonment was treated as sufficient. The learned counsel for the appellant referred me to 1933 Lah. 16.5 in which the accused was sentenced under section 304 (1) to transportation for life, but is appeal it was reduced to the imprisonment already undergone on the ground that a man who acts under grave and sudden provocation of this nature cannot be put on the same terms as an actual murderer. In this case the facts which go un challenged are that the accused found the deceased committing adultery with his wife. ''That he went to his house per chance and tools a pistol which was in his house, and fired at both. The man was hit at his back and the woman at her chest. This fact was established by the medical evidence and it therefore establishes the position in which both the man and the woman were found at the time of their murder. The accused locked the door from outside handed over the key to the police on their arrival. He also handed over the pistol, and confessed his guilt. It is a fit case consequently that the sentence be reduced the appeal is therefore accepted and the sentence is reduced to the imprison ment already undergone. He shall be released 'forthwith if not wanted in any other case. A.H. Sentence reduced.