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Criminal Miscellaneous No. 1151 of 1968, decided on 18^th July 1968.

S. 304 read with S. 302 Murder-Death of deceased caused by violence-Charge framed by Magistrate under S. 304 instead of S. 302 without giving reason-Held, not Justified.

S. 304-Death of deceased caused by violence-Enquiring Magistrate framing charge under S. 304 instead of S. 30 without giving any reasons and proceeding to try case himself-Order of Magistrate framing charge set aside as being not in accordance with requirements of law-Criminal Procedure Code (V of 1898), S. 213 and Second Schedule.

Ch. Muhammad Hasan for Petitioner.

Ch. Khalil-ur-Rehman for Respondents.

In an incident which happened at about sunset or, the 28th of July 1967, one Maula Bakhsh died and Mst. Bashiran, Ahmad Ali and Wali Muhammad suffered injuries. A case was registered against the respondents under section 304/148/149 of the Pakistan Penal Code. The learned Enquiry Magistrate by his order dated the 1st of March 1968 framed a charge against the respondents under section 304/148/149, P. P. C. and instead of them to the Court of cession decided to try them himself.

2. The prosecution case is that the respondents formed an unlawful assembly, armed with deadly weapons with the common object of murdering Maula Bakhsh, and in pursuance of such common object caused fatal injuries to him and also inflicted injuries on Mst. Bashiran, Ahmad Ali and Wali Muhammad.

3. The case of the defence, as put forth before me, is that the respondents-were constructing a wall on their own land and that the complainant-party, f. e., the injured persons, desisted and tried to take the land forcibly. It is alleged that the respon dents caused injuries in the right of defending their own property. It was contended that the fight, at any rate, was sudden and that the respondents, therefore, could not be held vicariously liable for the fatal injuries alleged to have been caused to Maula Bakhsh. The Police after investigation put up challan against respondents under section 173, Cr. P. C. for offences under section 304/148/149, P. P. C.

4. An offence under section 304, P. P. C. is exclusively triable by the Court of Session. The learned Magistrate, therefore, started enquiry under Chapter 18, Cr. P. C., and after record ing evidence framed charge under section 304/148/149, P. P. C., Death of Maula Bakhsh was caused by violence. The learned Magistrate should have given reasons to justify the charge under section 304 instead of section 302. In the absence of any reason, the charge framed by him under section 304, P. P.C. is not justified.

5. Be that as it may, the fact remains that an offence under section 304, P. P. C. is triable exclusively by the Court of Session and the learned Magistrate had no power to try it himself. The proper course to be followed by him was to have acted under section 210 and even if he had framed the charge under section 304, he should have explained it to the accused, and should have complied with section 211 requiring the accused to give list of witnesses and examined all or any one of them in his discretion under section 212. Le could then proceed under section 213 either to cancel the charge and discharge the accused or to have, after recording reasons, committed them for trial by the Court of Session. The charge under section 304 even if it had been defective would not have made much difference because the Sessions Judge has the power under section 226 to alter the charge framed by the Committing Magistrate. In the circumstances, the order of the learned Magistrate framing charge under section 304;'148/149. P. P. C. being not in accordance with the requirements of law is set aside and he is directed to reconsider the case from that stage, arid even if he, after giving reasons, justifies the charge under section 304/148/[49, he must take further proceedings in accordance with Chapter 18, Cr. P. C. and unless he discharges the accused under section 213, commit them for trial to the Court of Session.

6. The petition is accepted in the terms indicated above.

Petition accepted.

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