Cr.Misc.Appln.No. 459 of 2012.
1.For hearing of MA 3218/12.
2.For Katcha Peshi.
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Date
of Hearing 07.09.2012.
Date
of Decision 07.09.2012.
O R D E R.
Mr.Atta
Hussain Chandio, for the Applicant.
Mr.Muhammad Nawaz Soomro, for the respondents.
Mr.Sardar Ali Shah APG.
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SALAHUDDIN PANHWAR,J- Instant Application is against the Order
dated 27.07.2012, passed by the learned Family Judge & Judicial Magistrate,
Khairpur on a report under Section 173,
Cr.P.C.
2. Relevant
facts of the case are that complainant Allah Wadhayo lodged FIR on 25.06.2012,
stating therein, that on 05.05.2012, he along with his brothers Ahmed Khan and
Muhammad Khan was standing outside of the house. At about 700 hours accused
Muhammad Ibrahim and others duly armed with weapons caused injuries to
complainant and his brother Muhammad Khan, they proceeded towards hospital and
when reached at Kolab Jeeal machine curve, where they were intercepted by accused
Khadim Hussain armed with gun, Mour, Ghulam Akbar, Nek Muhammad, Rabel armed
with TT pistols, Adam armed with repeater,
Ghulam Abbass, Irshad Ali, Muhammad Ibrahim, Fayaz Hussain having
lathies, Riaz having iron rod, Waheed, Ayaz, Aziz with lathis. They abducted
the complainant’s son Azher Ali with intention to commit murder. Thereafter
complainant and his brother remained under treatment in Hospital at Khairpur,
they lodged F I R. Investigation was conducted; interim report (challan) was
submitted by investigating agency on 10.07.12, against nominated accused,
concerned Magistrate accepted the challan by taking cognizance.
3. The
record further reveals that according to interim charge-sheet four accused
persons nominated in FIR, granted bail, six accused persons were under custody while
four accused persons were shown as absconders. Subsequently investigation was
transferred to DSP Kandiaro, reinvestigation was carried out by him, after
completion of investigation, final report under A class was submitted With the
finding that due to landed dispute complainant has lodged false case, concerned
Magistrate by order dated 27.7.2012, accepted report under ‘A’ class and issued
release writ of accused persons confined in judicial custody and case was
disposed of under A- Class.
4. Counsel
for the applicant has inter alia, contended that second Investigating Officer
with mala fide intention and ulterior motives recorded the statements of defense
witnesses in supportof accused persons instead of eye witnesses of the case and
submitted false report under ‘A’ class; impugned order is not maintainable
under the law as the requirements of ‘A’ class are entirely different to the
factual and legal position of the subject matter; offence under Section 364 PPC
was triable by Sessions court, therefore concerned Magistrate was not competent
to issue release writ, specially, when
the cognizance was taken and the matter was pending for proceedings
under Section 87/88, Cr.P.C.
5. Learned
counsel for the respondents has argued that the case is totally false; in fact
such incident was not occurred but due to enmity the respondents have been
implicated by the complainant; impugned order is speaking one and legal therefore
cannot be challenged before this Court.
6. Learned
APG has not controverted the factual and legal plea’s raised by the applicant’s
counsel and conceded to the extent that the impugned order is not maintainable.
7. Heard
learned counsel for the respective parties and perused the material available
on record.
8. Admittedly
FIR transpires the names of accused persons with specific role attributed to
them; the offence was triable by the Court of Sessions; interim challan was
submitted before the concerned Magistrate within 14 days, such report reveals
that some accused persons were arrested, some were on bail and remaining were
absconders.
9. I
have examined the final investigation report and impugned order. According to
the report and impugned order, under ‘A’ class summary was accepted and release
writ was issued. In my opinion the facts of the case in hand are such that
disposal of the case under ‘A’ class seems to be contrary to the law. It would be
advantageous to endorse here that according to
10. Reverting to the instant case
what I find that in the present case names of accused with specific allegations
were manifest in the FIR so also in the investigation report and even some of
them, after getting bail, were facing their trial therefore this cannot be said
that in this case the accused were untraceable, therefore the impugned order is
illegal on this score alone.
11. Regarding
to the contention that learned Magistrate was not competent to issue release
writ of the accused I am in agreement with the contention as the interim
challan was submitted, some of the accused were on bail and admittedly the case
was triable by the Court of Sessions. It may be added here that the Magistrate
may agree or disagree with a police report but once the cognizance is taken on
a police report in matters triable by the court of sessions, even on interim
police report under section 344 Cr.P.C, the Magistrate is no more competent to
pass an order for disposal of such a case on subsequent report (s). It may also
be added here that under section 190(3),CR.PC, after taking cognizance if the offence
is exclusively triable by the Sessions Court, Magistrate shall without
recording any evidence send the case to the Court of Sessions, no specific
provision is available under Criminal Procedure Code to provide the pendency of sessions case file with the Magistrate
after taking cognizance for any other purpose but honourable apex court in case
of Muhammed Ramzan versus Rahib and others reported in PLD 2010 SC
585, settled a proposition of law that Magistrate after taking cognizance
in cases triable by session court, must complete the proceedings under section
87 and 88 and 512 of the CR.PC, if according to challan, accused are shown
absconder, in said dictum it is held that:--
“Paragraph 20. The phrase” or send for trial to the
court of sessions or High court” appearing in section 512 of the code clearly
demonstrates that Magistrate who is empowered to send the case to the court of
sessions has also power to record the evidence in absence of accused after
declaring him absconder which can be done
as required under section 87 and 88 of the code after issuance of
warrants of arrest as provided under section 204 of the code .Thus such
Magistrate has power to initiate proceedings under section 87 and 88 of the
code in a case triable by the court of session.. . . . . . . . . . .. . . . . .
. . . . . . . . . . . . . . . . .
Paragraph 22.It is not out of place to mention here
that originally such power was not given to the Magistrate, when committal
proceedings were being conducted. However, this power was given to the
Magistrate after abolishment of committal proceedings. The phrase was added by
the law reforms ordinance , 1972 with a view that sessions court should not be
burdened with these type of proceedings , its major portion of time would be
consumed in conducting these proceedings, which is being consumed now a days and
further the status of Sessions Court would be reduced to that of court of
Magistrate. If the proceedings under section 87/88 of the code are completed at the level of the
Magistrate before the case is sent up to the court will be in a position to
start the trial expeditiously and the time consumed in such proceedings by it
can be saved.
Paragraph 23. In order to comply with the above
provisions of law, it is directed that if all the accused are shown absconders
in the challan then the case be sent up to the court of session after
completing the proceedings as provided under section 512 of the code. After
receipt of case, the sessions court may pass order for keeping the case on dormant
file or pass appropriate order as it deems fit .if some of the accused are
absconders and some are present, then before sending the case to the court of
session the Magistrate should simply complete the proceeding under section 87
and 88 of the code within shortest possible time but not later then two months
after taking cognizance. The magistrate should ensure that when a case is sent
up to the Court of Session it should be complete in all respect enabling the Court
of Session to start the trial immediately”.
12. Therefore
it is suffice to say that pendency of
the sessions case file with the Magistrate was not for any other purpose but it
was only meant to complete the process of proceedings under section 87 & 88
Cr.P.C against absconding accused within 60 days, and proceeding of sections
512 CR.PC, if required, jurisdiction was vested in the Magisterial courts to complete the proceedings against absconding
accused persons in matters triable by the court of Sessions only to lessen the time
taking exercise and never meant to vest powers of Sessions Court (trial court)
in the court of Magistrate. Thus I am of
the firm view that in the instant matter the Magistrate was not competent to
issue release writ and such act is without jurisdiction and quorum non judice,
in any case Magistrate court cannot assume jurisdiction of Sessions Court.
13. Keeping
in view the circumstances of the case, and dictum laid down by apex court,
without any hesitation this is a fit case for interference, consequently impugned
Order dated 27.07.2012 is hereby set aside, therefore, the accused are hereby
arraigned in this case and they must face
the trial.
14. Above are the reasons
of a short order dated 07.09.2012 whereby this criminal miscellaneous
application was allowed, impugned order dated 27.07.2012 was set aside and the
concerned Magistrate was directed to forward the challan after completion of
proceedings under Section 87/88, Cr.P.C before the Court concerned.
JUDGE
Akber.