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Criminal Miscellaneous No. 307-Q of 1975, decided on 3^rdFebruary, 1981.

----S. 190 read with S. 347-Magistrate taking cognizance of a case triable by him exclusively may refer same to Court of Session for trial, if circumstances so warrant-Magistrate sending complaint under S. 307. P. P C. to Court of Session on ground that connected murder case was pending trial in that Court-Order maintained, in circumstances.-[Cognizance].

Emperor v. Nathu and others 33 Cr. L J 1932; Ahmad and another v. The State 1980 P Cr. L J 580 and Rex v. Motlay A I R 1949 All. 1 ref.

Rafique Ahmad Bangash for Petitioners.

Nemo for Respondents.

Dates of hearing : 29th and 30th November, 1980. .

In an occurrence which, allegedly, took place on 26th July, 1974 Ashiq Hussain son of Shaukat Ali and Mohammad Baqar Shah petitioners were injured Ashiq Hussain Shah later succumbed to the injuries in Mayo Hospital, Lahore, on 30^thJuly, 1974. Earlier, his dying declaration was recorded by a Magistrate, on 25^thJuly, 1974. On the basis of this statement, case under section 148/302/307/306/149, P. P. C. was registered with Police Station, Rayya, on the same day vide F. I. R. No. 74. Inter alia, Mohammad Rafi first respondent in the case was named as accused in the case.

2. Petitioners' case is that notwithstanding that Ashiq Hussain Shah suffered grievous injuries, on account of the influence of the accused persons, no case was registered till such time dying declaration of the deceased was recorded by a Magistrate. On the contrary a case under section 452/324/34, P. P. C. was registered at the instance or Mohammad Rafi respondent in this case. The two petitioners and the witnesses in the cross murder case were implicated. On the petitioners' complaint about the conduct of the Station House Officer, Police Station, Rayya, he was transferred. During investiga tion by an independent Police Officer, the accused in the murder case were challaned and a case under sections 452/324/34, P. P. C. registered, as already noticed, at the instance of respondent Mohammad Rafi was cancelled. Respondent, however, filed a complaint before a Magistrate, Ist Class, with enhanced powers under section 30, Cr. P. C., Narowal, on 11^thNovember, 1974. The learned Magistrate after recording preliminary evidence summoned the petitioners to face trial under section 307/452/34, P. P. C. Criminal Miscellaneous 307-Q-75, therefore, was filed to seek quashment of these proceedings.

3. During the pendency of this matter, learned counsel on 18th November, 1978 moved an application (Cr. Miscellaneous 1079 1-78) praying that he be allowed to question the order of the learned Magistrate dated 9th June, 1976 by which he had referred the case to the learned Sessions Judge for trial. The order dated 9th June, 1976 reads thus:-

4. Learned counsel, therefore, did not press the prayer for quash ment of the proceedings and restricted 'his arguments to question the legality of the order dated 9th June, 1976.

5. Two contentions were raised; firstly, that under subsection (3) of section 190, Cr. P. C., 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 the Court of Session for trial. Therefore, the learned Magistrate under 'this provision of law could not send a case to the Sessions Court for trial which is not exclusively triable by a Court of Session. It was then argued that even if it be assumed that he had power to thus send the same, he was required to give reasons for the order. He cited Emperor v. Natha and others (33 Cr. L J 1932) in support of the submissions.

6. I examined the first contention raised in the case of Ahmad and another v. The State (1980 P Cr. L J 580) and held that notwithstanding the provisions contained in section 190, Cr. P. C., a Magistrate under section 347, Cr. P. C., has power to send a case triable by him to the Court of Session or High Court at any stage of the proceedings if it appears to him that the case is one which ought to be tried by these Courts and I need not take a different view. Under section 347, Cr. P. C., the ground, for instance, that a complicated question of law arises or that a connected matter is already before the Court of Session etc. were generally accepted to commit the case to Sessions Court. Rex v. Motlay (A I R 1949 All. 1) can be cited in support of this. On the same reasoning even after the law reforms, a Magistrate taking cognizance of a case triable by him can send the same to the Court of Session for trial, if the circumstances so warrant. In the instant case, learned Magistrate has given reasons such as that the connected matter is pending there while sending the case to the Court of Session. In the Lahore case cited, section 347, Cr. P. C. was not adverted to. Therefore, even the second contention raised has no merit. The result is that the petition fails and is dismissed accordingly.

Before parting with the case, it may be noticed that the trials in both the cases are held up on account of the pendency of this petition. Office to see that the file is sent back at once to the learned Sessions Judge, who, I am sure, will commence the trial without any further delay.

Petition dismissed.

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