ISRAEEL Versus HASHMAT

The revisional jurisdiction of this Court has been invoked to quash the order, dated 5‑12‑1987 pronounced by Muhammad Ashraf Shagufta, the learned Additional Sessions Judge IV, Rahimyar Khan who had sent a case initiated under section 304, P.P.C. to a Judicial Magistrate Section 30, for trial.

The brief facts of this case are that Majeed Ahmad son of Hafizullah was washing his tonga in front of the house of Allah Ditta the complainant. The water stagnated in front of the complainant's house, who protested and asked Majeed Ahmed to take aside his tonga for washing. Majeed Ahmad felt incensed and hurled invectives. The complainant also retaliated by abusing him. Majeed Ahmad gave a Soti blow to Allah Ditta which landed on his right eye. On the alarm of the complainant, his father Qadir Bakhsh and mother Ghulam Fatima came there Hafizullah the father of Majeed Ahmad also reached the spot, klafizuilah gave Soti blows to the parents of Allah Ditta and also hurled a stone towards the complainant's mother which struck on her chest. The neighbours came there who restrained Hafizullah and Majeed Ahmad from making further assault. Qadir Bakhsh was taken to the hospital who died.

3. Initially a case was registered under section 307/34, P.P.C. but on the death of Qadir Bakhsh the offence was converted into one under section 302/34, P.P.C. The challan was submitted under section 304/34, P.P.C. The case was sent for trial to the Assistant Commissioner, Rahimyar Khan. He sent the case to the Court of Session on 8‑3‑1987 stating therein that the case was triable by the Court of Session, Rahimyar Khan. This case was transferred to the Court of Muhammad Ashraf Shagufta before whom it was pointed out by the learned counsel for the accused that the case was triable by the Court of Judicial Magistrate Section 30 and it has wrongly been sent up for trial to the Court of Session. He sent back the case for trial by the Judicial Magistrate Section 30. The same order has been complained against in this revision petition.

4. Sections 28, 30, 190, 346 and 347, Cr.P.C. are relevant for the decision of this revision petition which are reproduced below for the facility of reference:

Section 28.‑‑ Offences under Penal Code. Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried:‑

(a) by the High Court; or

(b) by the Court of Session; or

(c) by any other Court by which such offence is shown in the eighth column of the second schedule to he triable.

Section 30.‑‑ Offences not Punishable with death. In the Punjab, the North‑West Frontier, in Sind and in those parts of the Provinces in which there are Deputy Commissioners or Assistant Commissioners the Provincial Government may, notwithstanding anything contained in section 29, invest the District Magistrate or any Magistrate of the first class, with power to try as a Magistrate all offences not punishable with death.

Section 190.‑‑ Cognizance of offences by Magistrates. (1) Except as hereinafter provided (any Judicial Magistrate by the Provincial Government on the recommendation of High Court) specially empowered in this behalf, may take cognizance of any offence:‑

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any Police Officer;

(c) upon information received from any person other than Police Officer, or upon his own knowledge or suspicion that such offence has been committed.

(2) The Provincial Government (may on the recommendation of High Court empower any Judicial Magistrate to take cognizance under subsection (1), clause (a) or clause (b), of offences for which he may try or send to the Court of Session for trial.

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

Section 346.‑‑ Procedure of Magistrate in cases which he cannot dispose of.‑‑ (1) If, in the course of an inquiry or trial before a Magistrate in any,, district, the evidence appears to him to warrant a presumption that the case is one which should be tried, or sent for trial to the Court of Session or the High Court, by some other Magistrate in such District, he shall stay proceedings and submit the case, with a brief report explaining its nature, to the Sessions Judge or to such other Magistrate, having jurisdiction, as the Sessions Judge directs.

(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself or send the case for trial to the Court of Session or the High Court.

Section 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."

5. Under section 30, Cr.P.C. a Magistrate Section 30 is empowered to try all offences not punishable with death. He is empowered to try a case under section 304, P.P.C. Under section 190, Cr.P.C. a Magistrate can take cognizance of the case exclusively triable by a Court of Session and send the case to the Court of Session after trial without recording any evidence. If the Magistrate cannot dispose of the case himself, he can send it to the Court of Session or the r High Court, even in the course of an inquiry or trial. When the trial has been commenced, the Magistrate before signing the judgment can send the case to the Court of Session or the High Court before he finds that the case should be tried' by a latter Court.

6. This case relates to culpable homicide. It is yet to be determined whether an exception can be claimed in such a case to bring it within the ambit of section 304/34, P.P.C. The Court of Session can add or alter the charge at any stage of the trial, even in a case under section 304, P.P.C. If the offence falls under Part I of section 304, P.P.C., the maximum punishment which can be awarded is life imprisonment, whereas it is ten years in Part B of this section. A Magistrate Section 30 is not empowered to award maximum sentence in such a case. It would be futile exercise if he tries the case and then transfers it to the Court of Session for trial.

7. Under Chapter 24‑A of the High Court Rules and Orders Vol. III, it has, been lucidly explained that ordinarily a Section 30 Magistrate should not try

(i) cases in which he takes action on his own knowledge or information:

(ii) cases of homicide which appear prima facie to be cases of murder, but in which the accused may be able to establish an exception, reducing the offence to culpable homicide not amounting to murder;

(iii) cases in which a punishment of seven years' imprisonment would be inadequate.

7. Apparently the instant case is covered by the cases listed ac serial Nos. 2 and 3 supra. A similar case namely, Ghulam Hussain and another v. The State 1985 P Cr. L J 2334 was adjudicated by the High Court where the learned Additional Sessions Judge in similar circumstances had refuse the prayer for transferring the case to the Court of a Magistrate and his action was found justified.

8. I, therefore, quash the impugned order and direct the learned Additional Sessions Judge to try the case himself. A copy of this order may, be rent to the concerned Court. The revision petition is accepted and stands disposed of,

AA./A‑539 /L Revision accepted.