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Criminal Reference No. 104 of 1957, decided on 17th September 1957, reference made by the Sessions Judge, Muzaffarabad, dated 17th August r957.

S. 193 (1)‑--Sessions Judge whether could give finding concerning accused absconding at the time of trial and not committed to Sessions by the Magistrate ---Value of such finding.

Where the accused is absconding at the time of his trial and has not been committed to the Court of Session by the Magistrate, any finding concerning him, given by the Sessions Judge in judgment passed in the case of another co‑accused has no value in the eyes of law in view of the provisions of section 193 (1), Criminal Procedure Code.

Mir Fateh Khan v. Emperor A I R 1942 Sind 161 ref.

Muhammad Sharif, Government Advocate for the State.

This is a reference dated 17th August 1957, from the Sessions Judge Muzaffarabad in which he has recommended that the order dated 15th May 1957, committing Mir‑Zaman accused to stand his trial in the Court of Sessions under section 307/34 be quashed on the ground that this accused had already been exonerated of the charge in the judgment dated 8th January 1955, by the Sessions Judge at the close of trial of Shah Zaman his co‑accused when this accused was absconding and had been proceeded against under section 512 by the committing Magistrate. In the judgment dated 8th January 19 5, the learned Sessions Judge made the following remarks concerning Mir Zaman who was then absconding, "From the evidence produced no case is made out against the accused who is present and against the accused who is absconding: Agreeing with the Assessors Shah Zaman is acquitted for want of proof".

The question involved in this case is whether the Sessions Judge could have given any finding concerning the absconding accused and what is the value of that finding Section 193 (1) Criminal P. C. lays down that no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the‑ accused has been committed to it by a Magistrate duly empowered in that behalf. Mir Zaman accused was not then committed by the Magistrate to the Court of Session when a finding concerning him was given in the judg ment passed in the case of Shah Zaman. No finding should, therefore, have been given by the Sessions. Judge on the merits of the case against Mir Zaman and since he did give his finding, the same has no value in the eyes of law in view of the provisions of section 193, clause I criminal P. C.

The view is supported by Mir Fateh Khan v. Emperor (A I R 1942 Sind 161). In that case during the trial of the four accused committed by order of the Magistrate, the first Additional Sessions Judge had directed that one Mir Fateh Khan who was present in Court, but against whom no proceedings had till then been taken should be joined in the trial as a co‑accused on the same charges. It was held that section 351 Criminal P. C., was subject to section 193, Criminal P. C. and that the learned Additional Sessions Judge had no power to join Mir Fateh Khan as a co -accused in the case before him, whether he happened to attend the Court or not, when no inquiry of any sort had been held by a Magistrate into charges against him.

I, therefore hold that the finding of the learned Sessions Judge in his judgment dated 8th January 1955, absolving Mir Zaman of the charge under section 307/34 has no legal force and therefore the order dated 15th May 1957, commit ting Mir Zaman to stand his trial in the Court of Sessions need not be quashed. Since the Sessions Judge Muzaffarabad has expressed his opinion on the charges against Mir Zaman, the trial against Mir Zaman should he held by the Additional Sessions Judge, Muzaffarabad.

K. A. B. Reference rejected.

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