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Criminal Revision No. 298 of 1963, decided on 29th October 1968.

S. 323 read with Conciliation Courts Ordinance (XLI of 1961), S. 3 and Schedule, Part I, Section A‑Offence under S. 323, P. P. C. exclusively triable by Conciliation Court‑Magistrate has no jurisdiction to entertain complaint and summon accused for trial before himself:

Muhammad Rafiq for Petitioners.

Sardar Majid Lashari for the State.

Charge :‑Under section 323, P. P. C.

The petitioners were summoned by Ch. Qadir Bakhsh Javed, exercising the powers of a Magistrate of the 1st Class in the District, was sentenced by Order, dated 3‑12‑62 directing them to answer accusation under section 323 of the Pakistan Penal Code against them.

The facts of this case are as follows :‑‑

This is a revision petition against the order of Ch. Qadir Bakhsh Javed, Magistrate 1st Class, Gujranwala dated 3‑12‑62 by which after considering the report of the Chairman under section 202, Cr. P. C. lie found that a case under section 323, P. P. C. had been made out against the petitioner and issued summons to them.

(2) The facts of the case are that the respondent Muhammad Ismail put in a complaint before the Magistrate to the effect that the present petitioners had trespassed upon the compound of his house while armed with sticks and had inflicted injuries upon the complainant and his wife and his son. The medico‑legal reports attached to the complaint show simple injuries indicted with blunt weapons on the persons of the complainant and his son. The learned Magistrate referred the matter for inquiry under section 202, Cr. P. C. to the Chairman of Union Council, Talwandi, Rahwali. After considering the report the order in question was passed. The report was to the effect that the occurrence had taken place at an open place not belonging to the complainant.

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

(3) It has been provided in clause (a) to section 3 of the Conciliation Courts Ordinance, 1961 that all cases falling under Part 1 of the Schedule to the Ordinance shall be referred to the Conciliation Courts under the Ordinance and no civil or criminal Court shall have jurisdiction to try any such case. A case under section 323, P. P. C. cones under clause (2) of section A of the Schedule to the Ordinance and, therefore, no Magistrate can after the enforcement of the Ordinance try any case under section 323, P. P. C. The record is, therefore, submitted to the High Court with the recom mendation that the proceedings before the learned Magistrate he quashed.

(Sd.)

Sessions Judge, Gujranwala.

Muhammad Ismail respondent lodged a complaint under sections 452, 323, 148, 149 and 34, P. P. C. against Ghulam Haider, Mohy‑ud‑Din son of Walayat Khan, Barkat Ali son of Adalat Khan, Arshad Ahmad son of Ghulam Haider Khan and Muhammad Siddiq son of Mehdi Khan, residents of Rarialah Waraich, Police Station Sadar, Gujranwala, in the Court of Ilaqa Magistrate on the 20th of September 1962. The Magistrate endorsed on the complaint that it should be produced on the 4th of October 1962 for statement of the complainant. The Magistrate forwarded the complaint on the 12th of October 1962, to the Chairman, Union Council, Rahwali, under section 202, Cr. P. C., for a report. The Chairman, after making enquiries, submitted his report to the Magistrate. The Magistrate considered the report on the 3rd of December 1962 and by his order of even date he came to the conclusion that an offence under section 323, P. P. C. was made but prima facie and summoned the accused for the 17th of December 1962.

2. The accused‑petitioner challenged this order dated the 3rd of December 1962, in revision, in the Court of Sessions Judge, Gujranwala. The Sessions Judge, Gujranwala, by his order dated the 21st of January 1963, forwarded the case to this Court with a recommendation that the proceedings before the A learned Magistrate be quashed on the ground that under section 3, clause (a) of the Conciliation Courts Ordinance, 1961, all cases falling under Part I of the Schedule, annexed to the Ordinance, are exclusively triable by Conciliation Courts and that a case under section 323, P. P. C. is covered by clause (2) of section A of Part I of the Schedule.

3. I agree with the recommendation of the learned Sessions Judge. The Magistrate, after concluding that a prima facie case under section 323, P. P. C. against the petitioner was made out, had no jurisdiction to entertain the complaint and summon the accused for trial before him. The order of the Magistrate dated the 3^rd of December 1962, is hereby quashed with the direction that the complaint may be returned to the Additional District Magistrate for sending it to the Conciliation Court for trial under section 323, P. P. C., if the complainant so chooses. However, this decision will not affect the merits of the complaint before the Conciliation Court. Captain Ghulam Haider, petitioner No. 1, has died on 3‑2‑1968, during the pendency of this reference.

Reference accepted.

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