Kazim Ali Versus Nadir Ali

Muhammad Najam-ud-Din Mengal, J .--- This judgment disposes of Criminal Revision Petition No.114 of 2024 filed by the petitioner Kazim Ali son of Mehmood Khan, against the order dated 14th November 2024 (hereinafter referred as, "the impugned order") passed by learned Additional Sessions Judge-II, Quetta ("the trial Court"), whereby the application under Section 227 Cr.P.C. filed by the petitioner was dismissed.

2. Facts of the petition are that on 4th November 2023 at about 01:50 p.m. the petitioner (complainant) Kazim Ali lodged an FIR bearing No.169 of 2023 at Police Station Qauidabad, District Quetta, under Section 337-ADF, 34 P.P.C against the private respondents (accused) with the averments that on the said date he was present at his home after offering Zohrain prayer at about 01:30 p.m. heard noise from the street, as such, when he came out of home, the accused Nadir Ali alias Chango and his brother Faisal were present in the street having a knife/dagger in the hand of Nadir, on seeing the complainant launched attack upon him, due to which he sustained injuries on his left arm; when his brother Nazim came, the said Nadir Ali hit him with knife/dagger and caused him severe injuries to his chest and left hand and also attacked upon his son Ali Mardan and caused him injuries on his little finger.

3. Pursuant to above FIR, on completion of investigation, the challan of the case was submitted before the learned trial Court, who after taking cognizance of the matter, commenced with the trial, framed charge on 17th April 2024, under Section 337-F(iii) Q&D and 34 P.P.C. Subsequently, the petitioner filed an application under Section 227 Cr.P.C. for alteration of charge with the ground that the Investigating Officer has submitted the complete chalan by inserting Section 324 Cr.P.C., but the learned trial Court, vide impugned order dated 14th November 2024 transferred the case to the learned Court of learned Judicial Magistrate-IX, Quetta for trial. Whereafter, the instant petition has been filed.

4. I have heard the learned counsel for the parties and gone through the available record, which reflects that the learned trial Court framed the charge under Sections 337-F(iii), 34 P.P.C., however the petitioner filed an application under Section 227, Cr.P.C for alteration of the charge by framing the same under Section 324 P.P.C, whereas the respondents (accused) have also filed an application for transfer of the case to the Court of Judicial Magistrate. The learned trial Court rejected the application of alteration of the charge, whereas allowed the application for transfer of the case to the Court of Judicial Magistrate concerned with the observations that according to the record as well as the MLCs of the petitioner and other victims mostly attract the provisions of Section 337-F(iii), as such, the case also being made out under the referred Section, while contrary to the same, the ingredients of Section 324 P.P.C are not attacking. For facilitation it would be appropriate to reproduce Section 324 P.P.C. as below:

"324. Attempt to commit qatl-i-amd. Whoever does any act with such intention or knowledge and under such circumstances, that, if he by that act caused qatl, he would be guilty of qatl-i-amd, shall be punished with imprisonment of either description for a term which may extend to ten years [but shall not be less than five years, if the offence has been committed in the name or on the pretext of honour), and shall also be liable to fine, and, if hurt is caused to any person by such act the offender shall [in addition to the imprisonment and fine as aforesaid be liable to the punishment provided for the hurt caused.

Provided that where the punishment for the hurt is qisas which is not executable, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to seven years.

5. The bare perusal of the provisions of Section 324 P.P.C made it crystal clear that in the case in hand, the ingredients of the said proviso are lacking, as such, the case of petitioner fully falls within the ambit of Section 337-F(iii) P.P.C.

6. Besides, during trial when the Court found the case is triable by the inferior Court, then the Court can transfer to such Court. The provisions of Section 347 Cr.P.C. empowers the judicial magistrate to try the case before pronouncement of final judgment, if it is found that the offences so levelled are not triable by him, as such, he can transfer the case file to the superior Court. For ready reference, the Section 347 Cr.P.C. is reproduced herein below:

[347. Procedure when after commencement of trial, Magistrate finds case should be tried by Court of Session 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 Session or High Court, he shall send the case to the Court of Session or High Court, for trial.]

7. As under above referred Section, where the trial Magistrate found the case should be tried by Court of Sessions or High Court, then he shall send the case to the Court of Sessions or High Court. Meaning thereby the trial Court has ample power where found the case is triable by inferior or High Court then has power to remit the case to those Court. Rule of prudence/proprietaries demands that where the two-Court having concurrent jurisdiction, then the case be tried by the Court of inferior jurisdiction. Reliance in this regard is placed on the case titled as "Malik Zafar Yousaf v. State (PLD 2002 Lah. 84), the relevant portion whereof is reproduced as under:

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.

8. In view of above, learned trial Court has rightly transferred the case to the Court of learned Judicial Magistrate-IX, Quetta, as such, the impugned order does not suffer from mis-reading, non-reading and misappreciation of law and material illegality or irregularity to warrant interference by this Court.

For the foregoing reasons, the petition being devoid of merits is dismissed. However, learned Judicial Magistrate-IX, Quetta is directed to proceed with the mater by recording evidence, if the prosecution proves the Section 324 P.P.C against the respondents (accused), then the Court act according to law as provided under Section 347, Cr.P.C.

JK/56/Bal. Petition dismissed.