FARID vs ALLAH WASAYA
This criminal revision petition challenges the competency of a Sessions Court to take direct cognizance of a case exclusively triable by it upon a direct complaint. The core legal question is whether a Court of Session possesses original jurisdiction to entertain such complaints directly or if it is restricted to cases committed to it by a Magistrate. Relying on established precedents, the Court held that a Court of Session is not a court of original jurisdiction and cannot take direct cognizance of a case. The ratio decidendi establishes that for cases exclusively triable by a Sessions Court, a complaint must first be filed before a Magistrate for the purpose of taking cognizance under the relevant provisions of the Code of Criminal Procedure. Only after the Magistrate takes cognizance and subsequently sends the case to the Sessions Court can the latter become seized of the matter. Consequently, the Court quashed the proceedings initiated by the Sessions Judge, Sibi, and directed the complainant to file the complaint before a Magistrate of competent territorial jurisdiction.
- Is a Court of Session competent to take direct cognizance of a case exclusively triable by it on a direct complaint?
- Does a Court of Session possess original jurisdiction to entertain criminal complaints?
- What is the correct procedure for a complainant to initiate a case exclusively triable by a Court of Session?
- Section 435, Code of Criminal Procedure 1898
- Section 439, Code of Criminal Procedure 1898
- Section 190, Code of Criminal Procedure 1898
- Section 193, Code of Criminal Procedure 1898
The short point involved in this petition under. Section 435/439 of the Code of Criminal Procedure Code is whether a Sessions' Court is competent to take direct cognizance as a Court of original jurisdiction of a case exclusively triable by it on a direct complaint filed before it.
2. On this crucial point I have heard Mr. Raja Muhammad Afsar, Advocate, and Muhammad Yousaf Chaudhary, Assistant Advocate-General, Baluchistan. The learned counsel haA produced before me recent law on the proposition. The cases of Muhammad Islam and 2 others v. Mst. Natho Bihi (PLD 1977 Lah: 535) and Hajl Kamal Khan v. Muhammad Naeem etc. (PLD 1979 Quetta 69). The proposition has been elaborately discussed in these both citations. In case of Muhammad Aslam it has been observed that a Court of Session is barred from taking cognizance directly as a Court of original jurisdiction unless the same has been sent to it under section 190 (3) of the Criminal Procedure Code. The same view has been taken by the High Court of Baluchistan in case of Haji Kamal Khan. It has been held that in a case exclusively triable by a Court of Session, a complaint is to be filed before a Magistrate for taking cognizance under section 190 of the Criminal Procedure Code. After taking the cognizance the Magistrate may send the case to the Court of Sessions. The Sessions Court again takes the cognizance of the case. The Court of Sessions is not a Court of original jurisdiction. It would be seized of case only when a case is sent to it by a Magistrate.
3. I unhesitatingly take the same view and hold that a Court of Session is not a Court of original jurisdiction it can take cognizance of a case only when a case is sent to it by a Magistrate.
4. In view of the legal position discussed above the direct taking of the cognizance by the learned Sessions Judge, Sibi against the Petitioner Muhammad Farid is in utter violation of the provision of section 193 of the Code of Criminal Procedure. Taking of such cognizance cannot maintained. It is as such quashed.
5, The learned Sessions Judge, is directed to return the complaint to the complainant, who may file it, if he so desires, before a Magistrate having territorial jurisdiction.
6. The petition is disposed of accordingly.
Cited by 7 cases
- BISMILLAH KHAN and another vs THE STATE 2001 P Cr. L J 481
- GHULAM HABIB vs RAHIM GUL and 2 others- 1992 P Cr. L J 384
- GHULAM HABIB vs RAHIM GUL & Other K.L.R 1993 Criminal Cases 168
- ABDUL WAHEED vs THE STATE 1986 PLD Lahore 81
- ARSHAD MAHMOOD vs THE STATE 1983 PLD Peshawar 160
- AHMAD AND ANOTHER vs THE STATE 1980 P Cr. L J 580
- DAMON Versus STATE 1992 MLD 1993