MUHAMMAD ASLAM Versus THE STATE
The present petition contended for the quashment of the order, dated 2‑2‑1992 whereby Muhammad Afzal Javaid, Additional Sessions Judge, Lahore had accepted two revision petitions against two separate orders dated 8‑12‑1991 whereby Magistrate Section 30, Model Town, Lahore by one order, had allowed the application filed by the present petitioner contending that the offence under section 324, P.P.C. was not made out and by the other order had sent the file of the case to the Court of Illaqa Magistrate for trial
2. Whereas, the learned Additional Sessions Judge had accepted the first revision petition and declared that the Magistrate Section 30 was not empowered to transfer the case in question from his own Court to the Court of Ilaqa Magistrate and in the other revision petition had observed that the finding of the Magistrate Section 30 to the effect that no offence under section 324, P.P.C. was made out was contrary to the evidence on the record.
3. The learn counsel for the petitioner submitted that as injuries sustained by the P.Ws. were simple and caused by blunt means, therefore, the police had deleted section 324, P.P.C. and added section 33 7, P.P.C. on 30‑8‑1991 but nevertheless, the District Attorney had sent up the case to the learned trial Court under sections 324, 148, 149 and 458, P.P.C. Further submitted that the impugned order whereby it has been held that the. learned Magistrate Section 30 had erred in law in holding that no offence under section 324, P.P.C. was made out is contrary to the evidence on the record and therefore not sustainable in law.
4. On the other hand, the learned counsel for the State and the complainant opposed the present petition and submitted that the impugned order dated 2‑2‑1992 was unexceptional.
5. After having. heard the learned counsel for the parties at length, it was taken notice of that the observation of the learned Magistrate Section 30 to the effect that there was no injury on the vital part ‑is contrary to the facts of the case. or that no revolver had been used during the occurrence. Therefore, the said order dated 8‑12‑1991 was .not sustainable in law and was rightly set aside by the learned Additional Sessions Judge. As noted in the order of the learned Additional Sessions Judge, the findings of the learned Magistrate Section 30, were contrary to the facts, hence not warranted by law. The relevant portion of the impugned judgment is being reproduced hereunder:
"A perusal of the record reveals that as per FIR there is an allegation that Raza respondent had fired with his revolver. As per two medical certificates placed on the file Muhammad Saleem complainant had received as many as 8 injuries while his brother Muhammad Bashir had received 13 injuries. Both of them had received injuries on head, face, back; chest besides other parts of the body. Some injuries being on the vital parts and having been repeated by the respondents, prima facie offence under section 324, P.P.C. was made out which is tribal by the Court of Magistrate Section 30. The findings of the learned Magistrate Section 30 to the contrary are, therefore, neither legal nor warranted by any law. Not only that the learned Magistrate Section 30 illegally held that offence under section 324, P.P.C. was not made out but he also sent the file of the case to the Court of Illaqa Magistrate himself. In case the offence was tribal by Ilaqa Magistrate which is not the position in this case even then the learned Magistrate Section 30 was bound to refer the case to the learned Sessions Judge who could alone transfer the case to the Court of Ilaqa Magistrate. The transfer of the case to the Court of Ilaqa Magistrate by Magistrate Section 30 himself was without jurisdiction. This being so, his order. passed in this regard cannot be legally sustained."
6. In pursuance to the above discussions, the present petition for quashment, being devoid of merit, is hereby dismissed.
N.H.Q./M‑583/L Petition dismissed