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Criminal Reference No. 72 of 1970, decided on 20th Novem ber 1971.

S. 190(1)(c)‑Magis trate not invested with powers under S. 190 (1)(c), issuing process against persons on basis of information derived during inquiry against principal accused and joining them as co‑accused in case‑Magistrate also recording statement of co‑accused on oath‑Impugned order, held, suffered from illegalities, vitiated proceedings and quashed.

S. Murtaza Hussain for A.‑G. for the State.

Mazhar Imam for Respondents Nos. 1 to 4.

Date of hearing : 13th November .1970.

This is a reference by the District Magistrate, Thatta recommending that the orders dated 26th September 1968 and 28th October 1968 passed by the Mahalkari and 2nd Class Magis trate, Keti Bunder be quashed.

Keti Bunder police had challaned one accused person, namely, Shahdad son of Ghulam Hyder Rind to stand his trial for an offence under sections 379 and 411, P. P. C. Later on 26th February 1968, the evidence of the complainant Anwar and prosecution witness Rasul Bux was recorded by the learned Mahalkari and 2nd Class Magistrate Keti Bunder town. He passed an order issuing bailable warrants against four persons, namely Ghafooran, Umer, Boota and witness Rasul Bux for an offence under section 411, P. P. C. having cogni zance under section 190 (1) (c), Cr. P. C. On the subsequent date of hearing i.e., 16th October 1968, after those four per son appeared the learned Magistrate proceeded to record the statement of Ghafooran on oath. On the next hearing i.e., 28th October 1968, the learned Magistrate recorded the state ments of Boota, and Umer on oath: On the same day he issued bailable warrants under section 411 against Muhammad Hassan purporting to take cognizance under section 190 (1)(c), Cr. P. C. Thereafter the case was withdrawn from his file and was transferred to the Civil Judge and 1st Class Magistrate, Thatta, where it is still pending. In the later Court Muhammad Hassan appeared for the first time and was released on bail.

Muhammad Ghafooran, Muhammad Hassan, Umer and Boota moved the D. M., Thatta by filing a revision application under sections 435 and 438, Cr. P. C. pointing out the illegalities committed by the trial Court. The learned District Magistrate found that the trying: Magistrate was not invested with the powers under section 190 (1) (c), Cr. P. C. and, therefore, he was not competent to proceed against those persons and join them as co‑accused and furthermore the statement on oath of the accused persons could not be recorded. Consequently he made the present reference.

The learned counsel for the State has supported the reference. From the statement of facts it is plain enough that the learned Magistrate committed illegalities which vitiated the proceedings. Since he was not invested with the powers under section 190(1) (c) A he could not pass the impugned orders and join the other persons as co‑accused in the case.

I, therefore, accept the reference and quash the orders' passed by the learned Magistrate. The persons joined by him stand discharged.

Reference accented.

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