Muhammad Boota vs State etc
This criminal petition challenged an order passed by the Additional Sessions Judge, which set aside a Magistrate’s order allowing the addition of offences under Sections 376 and 511 of the Pakistan Penal Code 1860 to an existing FIR. The core legal question concerned the appropriate procedure for amending charges during trial and the scope of judicial discretion in assessing whether additional offences are attracted. The High Court disposed of the petition, holding that the Additional Sessions Judge’s order was based on a tentative assessment, which does not prevent the trial court from evaluating evidence as it emerges. The Court established that if, during the trial, the Magistrate finds that offences triable by the Court of Sessions are attracted, the Magistrate may exercise powers under Sections 346 and 347 of the Code of Criminal Procedure 1898 to refer the case to the Sessions Court for trial. This ensures that the trial court retains the authority to adjust charges based on the evidence presented during the proceedings.
- Can a Magistrate refer a case to the Court of Sessions if evidence suggests the commission of an offence triable by that court?
- Does a tentative assessment by an appellate court regarding the addition of offences preclude a trial court from considering future evidence?
- What is the procedure for a Magistrate to follow when evidence during trial indicates the applicability of offences triable by the Sessions Court?
- Section 376, Pakistan Penal Code 1860
- Section 511, Pakistan Penal Code 1860
- Section 354, Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-L(2), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 346, Code of Criminal Procedure 1898
- Section 347, Code of Criminal Procedure 1898
ORDER
Through this petition, petitioner has assailed order dated 13.2.2019 whereby the learned Additional Sessions Judge, Chichawatni, District Sahiwal has set aside the order of the learned Magistrate dated 23.1.2019. Petitioner has moved an application before the learned Judicial Magistrate, Chichawatni, District Sahiwal for addition of offences under Sections 376 and 511, PPC in the trial of case FIR No. 223/2017, dated 04.6.2017 under Sections 354, 337-A(i), 337-L(2), 148 and 149, PPC registered at Police Station Saddar Chichawatni, District Sahiwal. Such application was allowed by the learned Judicial Magistrate vide order cited above. Such order was overturned by the learned Additional Sessions Judge, Chichawatni, District Sahiwal and directed the learned Judicial Magistrate to proceed with the case under Section 354, PPC.
2. Learned counsel for the petitioner contends that from the bare reading of FIR and other material, it is clear that offence of attempt to commit murder is made out and it was incumbent upon the learned Additional Sessions Judge to give respect to the order of the learned Judicial Magistrate.
3. Arguments heard record perused.
4. As tentative assessm ent has been made by the learned Additional Sessions Judge on the basis of available material, therefore, this tentative assessment does not interfere for building an opinion later by the learned trial Court if some evidence is made available in the form of deposition of witnesses. If such a situation arises, petitioner can repeat application before the learned Judicial Magistrate asking him to add offences under Sections 376 and 511, PPC in the case. Learned Judicial Magistrate from the material then available to him if feels that offences apparently attracted, he while exercising powers under Sections 346 and 347 of Cr.P.C. can send reference to the learned Sessions Judge with his recommendation that case ought or should be tried by the Court of Sessions because in that eventuality the case under Section 376 read with Section 511, PPC becomes triable by the Court of Sessions.
5. With this observation, this petition is disposed of.