YASMEEN BIBI Versus THE STATE

ORDER

It is contended by learned counsel for the petitioner that order impugned before this Court is illegal, that learned Magistrate was competent to observe at the time of sending the accused for judicial remand that offence under section 18 of Zina (Enforcement of Hadood) Order, VII, of 1979 is made out. He has relied upon PLD 1981 SC 431 and 1993 PCr.LJ 1684.

2. I have heard learned counsel for the petitioner. In the instant case, F.I.R. was lodged by Yasmeen Bibi present petitioner under section 3,54, P.P.C. on 11-2-2003, the accused was arrested, he was produced before the learned Magistrate for sending him to judicial lock up. The learned Magistrate, who had no power to try a case which is in fact triable by learned Sessions Judge had passed the following order:---

Thereafter, respondent/accused filed a revision petition, which was accepted by learned Additional Sessions Jadge, vide his order dated 8-4-2003. 1 may note here that case under, section 18 of the Offence of Zina (Enforcement of Hadood) Order, VII of 1979 is triable by learned Sessions Judge and not by learned Magistrate. The learned Magistrate could not have given such observations when he was only requested to send the accused to judicial lock-up because neither any challan was submitted before him nor he was trying the case, because section 18 of the Offence of Zina (Enforcement of Hadood) Order, VII of 1979 is triable by the Court of learned Sessions Judge. At the time or passing of abovesaid order, he was not even taking the cognizance of the said offence because as mentioned above challan was not submitted before him. In this regard, the procedure is laid down in section 347, Cr.P.C. which is reproduced below:--

"347. Procedure when, after commencement of trial Magistrate finds case should be tried by Court of Sessions or High Court.-- If in any trial before a Magistrate, before signing judgment, it appears to him at any stage .of the proceedings that the case is one which ought to be tried by the Court of Sessions or High Court, he shall send the case to the Court of Sessions or High Court, 'for trial." .

3. The bare perusal of the abovesaid section would show that challan either was submitted before him nor any case was pending him in this regard, even no report under section 173, Cr.P.C submitted before him.

4. It may also be mentioned here that all the cases triable by the Court of learned Sessions Judge a different procedure has been given in section 190 sub clause 3 of Cr.P.C. which is reproduced below:--

"(3) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, (send the case to Court of Sessions for trial)."

5. After having heard the learned counsel for the petitioner and going through the impugned order of learned Additional Sessions Judge dated 8-4-2003, I am of the opinion that learned Additional Sessions Judge was right in accepting the revision petition filed by the accused respondent. No illegality or irregularity has been committed by the said learned Additional Sessions Judge. The judgments cited by learned counsel for the petitioner are not applicable in this case, therefore, this petition is dismissed in limine.

H.B.T./Y-24/L Petition dismissed