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Criminal Miscellaneous Application No. 383 of 1979, decided on 24^thNovember, 1979. .

------S. 190 (3) [as substituted by Law Reforms Ordinance (XII of 1972)] & S. 393 (1)-Power of Magistrate under S. 190 (3), Cr. P. C., held, intact in all cases whether triable try him or exclusively by Court of Session.

-- S. 561-A and Penal Code (XLV of 1860), S. 436/147- Cognizance of offence taken by Magistrate quashed by Sessions Judge on ground of offence indicated in complaint having been one falling within exclusive jurisdiction of Sessions Court and case made over to Assistant Sessions Judge for trial--Sessions Court having had no power to entertain complaint directly order of Sessions Judge, held, illegal-Subsequent dismissal of complaint for default, held further, left no proceeding pending in Assistant Sessions Judge's Court and evidence recorded in dismissed complaint could not be considered for taking fresh cognizance of alleged offence directly.

Mir Muhammad Shaikh for Applicant.

Abdul Latif Channa for A.-G for the State.

Abrar Hassan for Respondent No. 2.

Respondents Nos. 3 to 8 (absent).

Dates of hearing: 22nd and 23rd October, 1979.

This application under section 561-A of Cr. P. C. is directed against the proceedings in the case of Haji son of Ismail v. Haji Lal Bux and others under section 436/147. P. P. C. pending in the Court of Additional Sessions Judge, Badin.

2. The facts of the case, briefly, are that the respondent No. 2 Haji possesses 14 acres of agricultural land, in Taluka Matli, Badin; whereas, his brother Suleman, has in his possession, 20 acres of land, on tenancy, from one Khushi Muhammad Punjabi, in Kanori, Tapo Mangrio. Suleman had constructed a house on the lands and was residing therein, alongwith at Tando Ghulam. He fell ill and was admitted in Government Hospital at Tando Ghulam Ali His family members were shifted to the house of the complainant leaving behind one soomar Manario to look after the house.

3. On 5th May, 1978 the complainant had gone to Tando Ghulam Ali to see his brother Suleman, in the Hospital; When the complainant returned from the Hospital to his house, to the evening, Soomar informed him that the respondents 3 to 9 forming an unlawful assembly, had gone to the house of Suleman, and told Soomar to vacate the house, as the lands were granted to them. On his refusal, the applicant Haji Lal Bux is stated to have instigated the other respondents 3 to 9 to set the house on fire. Consequently all the respondents, set the house of Suleman ablaze causing the damage, worth about Rs. 1.500 to Rs. 1,600,

4. On 6th May, 1978, at about 4 p.m. the complainant informed the local Zamindar, Malik Ashiq, as he could not contact the landlord of the land, Khushi Muhammad. The complainant was advised to report the matter to the Police. Accordingly, the report was lodged with the Badin Police, During the investigation, by the S. H. O. and subsequently by the Assistant Superintendent of the Police. Badin, it transpired that the applicant Haji Lal Bux was in possession of the land in ques tion, which was even mutated in his name in Revenue Records (Survey No. 204/1-4). This contention was further supported by the detailed order, dated 4^thMay, 1978, passed by the Mukhtiarkar and Tribunal, under the Tenancy Act. No incident of fire, as alleged was found to have taken place, The police had, therefore, filed the case and took no action in the matter,

5. The respondent No. 2 thereafter filed a direct complaint on 24th May. 1978 in the Court of Civil Judge and First Class Magistrate Math, who took the cognizance of the offence, under section 436/147, P. P. C and issued bailable warrants against the applicant and the other respondents 3 to 9. The order of taking of the cognizance reads as follows:-

"The complainant has examined himself and not produced any witness. Finding that the complainant is aggrieved with the order of A. S. P. Math, and wants that the Court should decide the matter therefore, in the interest of justice, I register the case under sec tion 436/147, P. P. C. and order that the bailable warrants in the sum of Rs. 3,800 each and the P. R. Bond in the like amount be issued, against the accused persons to procure their attendance: Put off to 15th November, 1978, at 7-30 a.m."

Against the order of taking the cognizance of the offence, the applicant, filed a revision application in the Court of Session, Badin. The appli cation was allowed and the order of the learned Civil Judge and F. C. M., Math was set aside, being illegal, as the order of taking the cognizance of the offence under section 436, P. P. C. was without jurisdiction on the ground that the alleged offence was exclusively triable by the Court of Session. Despite such an observation, the direct complaint was remanded to the Court of the Additional Sessions Judge, Badin, for disposal according to law, because the alleged offence was exclusively triable by the Court of Sessions, not realising that section 437, Cr. P. C, was repealed by "Law Reforms; Ordinance 1972''.

6, When the case was fixed for hearing on 4th Aril, 1979, in the Court of the learned Assistant Sessions Judge, Badin, the complainant and his Advocate, were called absent. No intimation or request for adjournment was sent to the Court The complaint was, therefore, dismissed for default on 4th April, 1979.

7. The respondent No, 2 filed a fresh complaint, direct in the Court of the learned Assistant Sessions Judge, Badin, praying that due to misunderstanding, the complaint was dismissed for non-prosecution, hence the fresh complaint was filed. The learned Judge passed the following order, without recording fresh evidence:-

"From the evidence recorded, so far, a case under section 436, P. P. C. has been made out, against all the accused. Register the case under section 436, P. P. C. against all the accused and issue bailable warrants in the sum of Ks. 2,000 each,"

8. Sheikh Mir Muhammad learned counsel for the applicant, has submitted that there is no provision, in the amended Criminal Procedure, for empowering the learned Sessions Judge, after setting aside the order of the earned Civil Judge and F. C. M., Uatli, to remand the case to the Court of Assistant Session Judge, Badin, It has been argued that the direct complaint, after It was dismissed for default, could not be restored by the learned Assistant Sessions Judge, Badin, without recourse to the provisions of the Code of Criminal Procedure. It is argued that the Court of. Sessions has no jurisdiction to directly entertain the complaints or remand the cases for trial, to the subordinate Courts. The cases triable by the Court of Session, are first entertained by the Magisterial Courts, and arc then sent for trial, to the Court of Session. In the instant case, it is argued that the order of taking cognizance of the offences by the learned Civil Judge & F. C. M., Badin was set aside by the learned Sessions Judge. There was no order of taking cognizance of the offence. The complaint could not be forwarded by the learned Sessions Judge for trial, to the Court of Assistant Sessions Judge, Badin, as there is a bar against adopting such a procedure, under section 193, Cr. P. C, Reliance is placed on the case of Muhammad Aslam and .2 others v. Mst. Nathoo Bibi (P L D 1977 Lah. 535). In the cited case, petition under section 561-A, Cr. P. C. was filed, for quashment of proceedings in a private complaint under section 302/34, P. P. C., pending in the Court of Additional Sessions Judge, Lahore, in which it was contended that the Court of Session could not entertain a private complaint, for offences falling exclusively, within its jurisdiction, because there is clear bar to do so, under section 193, Cr. P. C. The private complaint was filed directly in the Court of Session, which was forwarded to the Additional Ses sions Judge for disposal according to law. Statement of the complainant under section 200, Cr. P. P. C. was recorded. He also recorded state ments of witnesses under section 202, Cr. P. C. and ordered the P, E. After Completing the P. E., the learned Additional Sessions Judge, found the prima facie case, against the accused and issued non-bailable warrants. It was, therefore, argued that under section 200, Cr. P. C. it was mandatory that the complaints of such a nature were to be instituted, initially in the Courts of Magistrate, competent to take cognizance under section 190 (1) (b), Cr. P. C. only. The Court Session could not entertain such complaints directly, as section 19 Cr. P. .C, completely bars, taking cognizance of any offence by the Court, sitting as a Court of original jurisdiction, unless a complaint her been sent to it under section 193 (3), Cr. P. C.

9. Under the new law, clause (3) of section 190 has since been amended, wherein, it has been laid down that a Magistrate taking cognizance under section 190, Cr. P. C. of an offence, triable by a Court Session, shall without recording any evidence, send the case to tip: Court of Sessions for trial. It would be useful to reproduce section 190(3 of Cr. P. C. as it stood before the amendment:

"(3) The Provincial Government, may empower any Magistrate of the first or second class to take cognizance under section (1), clause (c), of offences for which he may try or commit for trial."

The amended clause, as it stands now reads as follows:-

"A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall without recording any evidence, send the case to Court of Session for trial."

After going through the two clauses, it is evident that the Magistrate still retains the powers, in all cases, whether triable by him or exclusively, by the Court of Session. There is only one difference that before the amendment, in cases, where the offences were exclusively triable by the Court of Sessions, the Magistrate was required to record evidence, during the enquiry and commit the case, for trial to the Court of Session. Section 193, Cr. P. C. reads as follows:-

(1) Except as otherwise expressly provided by this Code or any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190, subsection (3)."

The amended section 190 (3) clearly lays down "unless the case has been sent" which refers to the Court of Sessions.

I am in respectful agreement with the case cited above. It is therefore, clear that after setting aside the order of taking cognisance of the offence, by the learned Civil Judge & F. C. M. the learned Sessions Judge had erred in law, by forwarding the direct complaint to the Court of learned Assistant Sessions Judge, at Badin for trial. Consequently the cognizance directly taken by the learned Assistant Sessions Judge Badin was illegal. Subsequently, when the complaint was dismissed for default, there were no proceedings pending in the Court of the learned. Assistant Sessions Judge, and the evidence recorded during P. E. in the dismissed complaint, could not be considered for taking fresh cognizance of the alleged offence directly.

Accordingly, I accept the application and quash the proceedings in the case, Haji son of Ismail v. Haji Lal Bux and others under section 436/147, P. P. C. pending in the Court of the learned Assistant Sessions Judge, Badin.

Proceedings quashed.

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