MALIK ZAFAR YOUSAF Versus THE STATE

ORDER

This Criminal Revision is directed against an order dated 9‑10‑2001 passed by the learned Sessions Judge, Islamabad, whereby the case, arising out of F.I.R. No.157 dated 5‑7‑1998, registered at Police Station Margalla, Islamabad, under sections 365, 506, 448, 458, 342, 147, 148 and 149, P.P.C. which previously was being tried by the Special Court, Anti- Terrorism, Rawalpindi/Islamabad, upon amendment in the schedule excluding this case from the jurisdiction of the Anti‑Terrorism Court, had been entrusted to the learned Additional Sessions, Judge, Islamabad for disposal in accordance with law. This had been done after receipt of record from the Anti‑Terrorism Court after the amendment in the schedule.

2. According to the learned counsel for the petitioner, the offences made out were triable either by a Court of Sessions or by a Court of Magistrate with powers under section 30 of the Cr.P.C. and the case might have been sent to the Court of a Magistrate instead of the Court of Additional Sessions Judge. Because this way, the petitioner loses a forum for appeal.

3. Normally it is the police who has to submit a report under section 173, Cr.P.C. which is also called as the charge‑sheet of the police against an offence reported to the police. A Magistrate has then to inter alia enquire whether the case was triable by the Court of a Magistrate or by a Sessions Court and this inquiry he undertakes pursuant to the provisions of sections 190 and 344 of the Cr.P.C.

4. Section 30 of the Cr.P.C. reads as follows:‑‑

"Offences not punishable with death. ‑‑‑Notwithstanding anything contained in sections 28 and 29, the Provincial Government may invest any Magistrate of the First Class with power to try as a Magistrate all offences not punishable with death."

5. Whereas section 34 of the Cr.P.C. reads as follows:‑‑

"Higher powers of certain District Magistrates. ‑‑The Court of a Magistrate specially empowered under section 30, may pass any sentence authorized by law, except a sentence of death or imprisonment for a term exceeding seven years."

6. What happened in this case is that the challan in view of the unamended schedule to the Anti‑Terrorism Act, 1997, was directly submitted under the provisions of the Anti‑Terrorism Act, 1997, before the Anti -Terrorist Court and no intervention came about in view of sections 190 and 344 of the Cr.P.C. by the Court of a Magistrate.

7. When the jurisdiction of the Anti‑Terrorist Court was ousted, the cases were remitted to the regular Courts and in normal routine, were sent to the learned Sessions Judge for re‑distribution. It is at this juncture that the learned Sessions Judge passed the impugned order transmitting the case to the learned Additional Sessions Judge.

8. Since this was an office order, it appears that there was no application of mind whether the case is to be tried by a Magistrate or by a Sessions Court in view of the concurrent jurisdiction of both these Courts in the offences under reference.

9. The learned Assistant Advocate‑General was called in this case and has been heard. He too is of the view that if the challan in this case had been submitted in routine, its first encounter would have been the Court of a Magistrate. Where it may have been inter alia enquired into whether all the documentations have been properly done and correct names have been provided. Besides, whether the case was one to be sent up to a Sessions Court or to be tried by the Magistrate himself. It is his view that normally a case triable concurrently by a Sessions Court and by a Court of Magistrate as reflected in the schedule of the Criminal Procedure Code, is to be sent to the Court of Magistrate, which is the routine, for the Magistrate to enquire whether the case was to be tried by him or in view of its gravity it had to be sent to a Sessions Court for trial in its original jurisdiction.

10. In the case of Rex v. Matoley and others AIR (36) 1949 Allahabad 1, the decision of the Full Bench was that a Magistrate had to first decide whether the case was to be tried by his Court or by a Sessions Court and give reasons for any subsequent contest on this score.

11. Reliance may also be placed on the following cases:‑‑

(i) Mehar Khan v. Yaqub Khan and another 1981 SCMR 267.

(ii) The State v. Ghulam Qadir and 2 others PLD 1964 Pesh. 53.

(iii) Ghulam Hussain and others v. The State 1985 PCr.LJ 2334.

(iv) Mian Safdar Khan and 3 others v. The State 1981 PCr.LJ 113.

12. In a regular forum, the Criminal Procedure Code has to be followed in letter and spirit and the procedures are to be also followed accordingly. While keeping in view the requirements of the Criminal Procedure Code, this Court agrees with the contention that as the Magistrate and the Sessions Court had concurrent jurisdiction in the matter, propriety demanded that the Magistrate first applied his mind to the proposition and took a decision about the forum, before the matter proceeded any further. And as the order of the learned Sessions Judge gave no reasons in the office order impugned transferring the case to the Court of the learned Additional Sessions Judge, this Court would reverse the order and remit the case file to the Ilaqa Magistrate. Who may consider this as a challan case submitted by the police and enquire whether it ought to be tried itself or by the Sessions Court and then proceed in accordance with law. The revision petition is consequently accepted and the case is remitted to the Ilaqa Magistrate.

13. A copy of this order be immediately sent to the learned Sessions Judge, Islamabad, for necessary action.

Q.M.H./M.A.K./Z‑68/L

Revision allowed.