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Criminal Revision No. 46 of 1982, decided on 12th March, 1983.

---Ss.190(1) & 439--Penal Code (XLV of 1860) S. 307/324/148/149--No notification specially empowering Magistrate Section 30 to take cognizance under section 190(1)(c) shown to have been issued--Magistrate summoning accused after recording evidence--Action of Magistrate, falling within range of S.190(1 ) (c)--Magistrate, held, not competent to summon accused--Case transferred to Assistant Commissioner to proceed de novo and act in accordance with law.

M. Soltan Alam for Petitioner. Tassaddaq Hussain Jilani, A.A.-G. for the State.

The facts giving rise to this revision in brief are that on 1st January, 1980 a case under section 307/324/148/149, P.P.C. was registered at P.S. Shujabad against Shamshad Khan petitioner and others for murderous assault upon Wahid Bakhsh. After investigation, the police submitted challan placing Shamshad Khan petitioner in column No.2. Syed Masood Ali Shah, Magistrate Section 30, Multan framed the charge and after recording the statement of Wahid Bakhsh,, he issued process against the petitioner to face trial vide his order dated 18th November,1981. The petitioner entered appearance. The learned Magistrate before taking evidence, informed him that he was entitled to have the case tried by another Court whereon he desired to be tried by another Court. Conse quently, the learned Magistrate referred the case to the learned Sessions Judge for transfer to some other Court of competent jurisdiction. The learned Sessions Judge, however, did not agree with him and sent back the case to him. Hence this revision.

2. The learned counsel submits that since the cognizance of the offence against the petitioner was taken by Syed Masood Ali Shah, the learned Magistrate, who was not especially empowered to take cognizance under section 190(1), Cr.P.C., the order dated 18th November, 1981 summoning the petitioner was illegal. The learned Assistant Advocate-General has, however, tried to distinguish the case so as to take it out from the provisions of clause (c) of subsection (1) of section 190, Cr.P.C. 3. After hearing the learned counsel for the parties, I find that no notification specially empowering Syed Masood Ali Shah, Magistrate Section 30 to take cognizance under subsection (1) of section 190, Cr.P.C. has been shown. Furthermore, since the learned Magistrate had summoned the petitioner after recording evidence, his act falls within clause (c) of: subsection (1) of section 190, Cr.P.C. To my mind in these circumstances, the learned Magistrate was not competent to summon the petitioner Resultantly, the order dated 18th November, 1981 is set aside. Since R Syed Masood Ali Shah is not specially empowered to take cognizance under subsection (1) of section 190, Cr.P.C. the case is transferred to the Court of A.C., Shujabad who would proceed de novo and act in accordance with law. Needless to add that this order shall not bar taking of the cognizance against the petitioner in accordance with law. This revision is accepted.

M. Y. H. Revision accepted.

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