Find a Lawyer

Criminal Revision No. 15 of 1976, decided on 22nd October 1976.

‑‑ S. 253 read with Penal Code (XLV of 1860), S. 323/34 and Conciliation Courts Ordinance (XLIV of 1961), Ss. 3(1)(a) & 18 and Schedule, Part I, Section A‑Discharge of accused‑Magistrate on a complaint before him coming to conclusion that a case under S. 323/34 made out against accused but, later presumably in view of Part I of Schedule to Conciliation Courts Ordinance, discharging accused under S. 253, Cr. P. C.‑Magistrate, held, enjoys discretion either to try such case himself or refer same to Conciliation Court‑Order of discharge, in circumstances of case, set aside.

Shafi Ahmad v. Gopal Mia P L D 1967 Dacca 375 and Abdur Rahman v. The State P L D 1967 Pesh. 364 ref.

Abdur Rehman Khan for Petitioner.

Muhammad Aman Khan for Respondents.

Mushtaq Ahmad for A.‑G. for the State.

Date of hearing : 22nd October 1976.

On the last date of hearing, some legal issues about the maintainability of this revision petition had cropped up. Learned counsel for the petitioner maintains that addition of section 439‑A in the Cr. P. C. was given effect to, in N: W. F. P., from 26‑12‑1975, whereas the impugned order of the learned Sessions Judge is dated 12‑6‑1975. Further that the learned Sessions Judge has not exercised any power under section 439‑A, Cr. P. C. but that he had disposed of the criminal revision in question by exercising powers vested in him under section 436, Cr. P. C. Therefore it is no longer necessary to determine the point raised in the order dated 6‑10‑1.976, ante.

2. I have heard the arguments addressed before me by the learned counsel for both the parties, as also the learned counsel who appeared for State, who supports the petition.

3. Brief facts of the case are that on 31‑12‑1972 Misal Khan, took, in a truck, his injured brother Faujoon Khan who was unconscious, to Police Station Pabbi, where he lodged a report at 8‑45 p.m. charging Hussain Shah and Halim Shah respondents for causing injury on the same evening at 8 p.m. to Faujoon Khan with a belcha (spade) in furtherance of their common intention. A case under section 307/34, P. P. C. was then registered at slat No. 349, dated 31‑12‑1972, in the said police station. After investigation, the challan was ultimately put in the concerned Court of Magistrate, Nowshera. After recording evidence, the learned Magistrate, on whose file the case was pending, came to the conclusion that a case under section 323, P. P. C. had been made out against the accused and not one under section 307/34, P. P. C. In consequence thereof the learned Magistrate instead of framing charge under section 323, P. P. C. against the accused, discharged both the accused respondents under section 253, Cr. P. C. by order dated 16‑12‑1974. The aggrieved complainant then filed a revision petition in the Court of Sessions Judge, Peshawar against the said order of discharge of the accused, but the learned Sessions Judge by his impugned order dated 12‑6‑1975 dismissed his revision petition, by holding that no independent witness has been produced by the prosecution and therefore the accused respondents were rightly discharged. The complainant has now come up to this Court through this revision petition, wherein he has challenged the finding of both the Courts below and has prayed that the orders of both the lower Courts be set aside and the case be remanded to some competent Magistrate for trial.

4. Obviously there could hardly be any justification, for the outright discharge of the accused under section 253. Cr. P. C. after the learned trial Magistrate held that prima facie a case under section 323, P. P. C. had been made out by the prosecution against them. It appears, although the impugned order of the learned Magistrate is not clear on that point, that since offence under section 323, P. P. C. is included in Part I of the Schedule of Conciliation Courts Ordinance, 1961 which offence is exclusively triable by a Conciliation Court, therefore, the learned Magistrate after holding that the offence fell under section 323, P. P. C. felt that he was no longer competent to try such case himself. He consequently discharged the accused under section 253, Cr. P. C. Learned counsel for the petitioner has placed reliance on a Dacca ruling reported as P L D 1967 Dacca 375 in support of his argument that in the instant case, statements of the complainant Faujoon Khan and his brother Misal Khan, in the light of the medical evidence, were sufficient to enable the Court to frame a charge against the accused‑respondents under section 323/34, P. P. C. In the above quoted ruling of the East Pakistan High Court, the main finding is to the following effect:‑

"The mere fact that the Magistrate framed charge under section 323 of the Penal Code, 1860, did not alter the character of the case itself which fell within section 325 and not section 323 of the Code. Besides, the law permits a Magistrate to alter a charge framed by him at any stage of the trial. He could easily reconvert the charge into one under section 325 of the Code. The case, in the circumstances, there fore, did not fall within mischief of section 3(l)(a) of the Conciliation Courts Ordinance, 1961."

In the case in hand, it may be noted that it was registered under section 307/34, P. P. C. and at the conclusion of the investigation, the case as such, was taken to the criminal Court, where its trial commenced before the Magistrate.

5. A careful examination of section 3 (1)(a) of the Conciliation Courts Ordinance, 1961 would show that it directs that all cases falling under Part I of the Schedule shall be referred to conciliation under the said Ordinance. It follows that this provision is in the nature of a direction or a mandate. However, it is subject to the words "save as otherwise provided, herein after". Section 18 of the Conciliation Courts Ordinance, 1961 provides that:‑

"Nothing in this Ordinance shall prevent the police from investigating a cognizable case by reason of the fact that the case relates to an offence specified in Section A of Part I of the Schedule, but if any such case is taken to a criminal Court, such Court may, if it thinks fit, direct that it be referred to conciliation under this Ordinance."

It therefore, rests in the discretion of the criminal Court to which such case has been taken by the police after investigation to refer it to con ciliation. In a Peshawar case re: "Abdur Rahman v. The State" (1), it has been held that, in the exercise of such discretion by the criminal Court under section 18 of the Ordinance, the Magistrate may either refer such case to a Conciliation Court or he could himself try the same. Great stress was laid on the word "may" appearing in section 18 and it was held, "it is up to the Magistrate to try the case or refer it to the Conciliation Court".

6. In that view of the matter the revision petition is accepted, the impugned orders of the learned Magistrate and the learned Sessions Judge are set aside and the case is remanded to the Sub‑Divisional Magistrate, Nowshera to proceed with the case either himself or to entrust it to some other competent Magistrate, who on the evidence on record may frame a formal charge and if in his opinion the offence falls under a section of the P. P. C. which requires to be dealt with exclusively by a Conciliation Court, then to exercise his discretion as provided in section 18 of the Conciliation Courts Ordinance, 1961.

S. Q.

Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.