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Criminal Revision No. 592 of 1967, decided on18th December 1967.

Ss. 209, 210 & 213-Commitment to Sessions Court - Case registered by Police under S. 302, P. P. C. Committing Magistrate not required to decide whether case is one under S. 304 or S. 302, P. P. C. Case- to be committed to Sessions Court if prima facie made out-Order of discharge can however be passed if no sufficient reason exists for commitment or there is no evidence.

Hari Ballav Shah Roy v. Gopi Ballav Shaha and Government of East Pakistan P L D 1959 S C (Pak;) 347 fol.

S. 438-Sessions Judge in his report to High Court expressing opinion in ease Such case not to be laid before him for trial.

The facts of this case are as follows :-

1. A case under section 302, P. P. C. was registered by the police against Sadiq and five others. The commitment proceedings were held by Mr. Ghulam Farid-ud-Din Riaz, Magis trate 1st Class, Toba Tek Singh. He recorded the entire evidence of the prosecution and came to the conclusion that the accused are guilty of culpable homicide not amounting to murder. He charged them under section 304, P. P. C. and sent the case to a Magistrate with powers under section 30 of the Criminal Procedure Code. This revision petition has been filed by William, the complainant, against the order of the learned Magistrate.

2. The case of the prosecution in brief is that William lent his Khentch to Sadiq accused. John Masih, the father of William, reprimanded his son far having lent the Khentch and asked him to get it back. William went to square No. 116 where the accused were threshing their wheat. He found all the six accused sitting there. He demanded the return of the Khentch but the accused refused to give it back. He insisted upon its return and told them that he would not go back without it. A quarrel broke out and all the accused attacked him with dangs. In the meantime John Masih, deceased, along with Jaims and Sardara arrived at the spot and tried to save William. The accused also attacked John Masih and his com panion Jaims. Punnu, Isa and Praim Das also reached the place of occurrence and witnessed the fight. In self-defence William and Jaims gave dang blows to the accused persons. John Masih was seriously injured, he was taken immediately in his uncons cious state to the Civil Hospital, Gojra where he expired after a short while due to his injuries. In his order the learned Magistrate has discussed at length the point if the case was covered under Exception 4 of section 300, P. P. C. in his opinion the death of John Masih was caused without premeditation in a sudden fight in the beat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel manner or unusual manner.

The proceedings are forwarded for revision on the following grounds :-

3. The order of the learned Magistrate is bad in law. He has usurped the jurisdiction not vested in him by law. He has only to find whether there are possibilities of conviction and not probabilities thereof. As far as the evidence of the prose cution is concerned there is nothing in it that there was a sudden fight without premeditation or that the offenders had not taken under advantage or acted in a cruel or unusual manner. These points may he taken by the accused persons in defence. It was not the function of the trial Magistrate to give any finding on these points His function was only to see that in case the prosecution evidence is believed whether it would warrant a conviction under section 302, P. P. C. He had to see whether the evidence is sufficient to put the accused on trial under section 302, P. P. C. For these reasons, the order of the learned Magistrate is bad in law. The case is, therefore, reported to the High Court with a recommendation that the order of the learned Magistrate be set aside and the case be referred back to the same Magistrate or any other Magistrate for proceeding in accordance with law.

Khan Shah Ahmad Khan for the Complainant.

Kh. Muhammad.Afzal for the Accused-Respondents.

Sh. Riaz Ahmad for the State.

This is a reference by the Additional Sessions Judge, Lyallpur, whereby he has recommended that the order of the Magistrate dated the 3rd June 1966, ordering the trial of the respondents under sections 148 and 304 read with section 149, P. P. C. be set aside, and the accused be committed to the Court of Sessions.

2. The facts of the case are that at the instance of William a case was registered under sections 148 and 302/149, P. P. C., at Police Station Gojra, Lyallpur District. After investigation, the Police put in challan under the above sections. The learned committing Magistrate after recording the evidence came to the conclusion that it was a case under section 304, P. P. C. and not one under section 302, P. P. C. which bad to be committed to the Court of Sessions. As he himself was not competent to try the case, he entrusted it to Mr. Abdul Shakoor, Resident Magistrate, Toba Tek Singh for trial.

3. Sh. Riaz Ahmad, appearing on behalf of the State in support of the reference has argued that the learned Magistrate has invaded jurisdiction of the Sessions Court while passing such an order. He cited Hari Ballav Shah Roy v. Gopi Ballav Shaha and Government of East Pakistan (P L D 1959 S C (Pak.) 347) and Mazharul Haq v. Ishaque Sardar and 15 others (P L D 1962 S C 480) in support of his submission. Learned counsel appearing on behalf of the complainant also supports the reference. The reference has, however, been opposed by the learned counsel for the respondents on the plea that the learned Magistrate was competent to pass such an order under section 209 of the Cr. P. C There is no doubt that the Court can take into consideration the evidence and pass an order, but a committing Magistrate is not required to decide the issue whether a case is one under section 304 or under section 302, P. P. C. If a prima facie case is made out, then the function of the committing Magistrate is to commit the case to the Court of Sessions for trial. However, if there are no suspicion reasons or no evidence, the learned Magistrate is competent to pass an order of discharge. The observations of their Lordships in Mazharul Haq v. Ishaque Sardar and IS others, exactly lay down this principle. In obedience to the dictum of their Lordships of the Supreme Court, I accept this reference, set aside the order passed by the learned Magistrate. He will now apply his mind and pass an order of commitment as required by law.

4. Mr. Saeed Ahmad, learned Additional Sessions Judge has expressed his opinion in this case, it will not be laid down before him for trial.

5. There is an application for the transfer of the case (Cr. Misc. 1887 of 1966), which becomes infructuous in view of my order.

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