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Criminal Appeal No. 171 of 1978, decided on 5th October, 1985.

(On appeal against the judgment, dated 3‑6‑1978 of Lahore High Court in Criminal Revision No. 163 of 1978).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 304‑‑Criminal Procedure Code (V of 1898), Ss. 193 & 265‑D‑‑Leave to appeal granted to accused facing trial before, a Magistrate to examine whether judgment of High Court correctly interpreted and applied section 193, read with S. 265‑D, Cr. P.C. in directing his trial by Sessions Judge himself.

‑‑‑Ss. 193, 265‑D, 347 & 528(1)‑‑Sessions Judge dismissing complaint against accused under S. 302 P.P.C. agreeing with report of Magistrate, who conducted inquiry, that a case under S. 304, Pakistan Penal Code, was prima facie made out and ordering Magistrate to try accused under section 304 P.P.C. High Court setting aside order of Sessions Judge regarding trial by Magistrate and directing Sessions Judge to proceed with trial of complaint as well as challan case himself‑‑Direction of High Court not approved‑‑Held, it was not warranted that Sessions Judge must hold trial himself and could not entrust case to any other competent Magistrate or Court‑‑It would be a narrow and pendatic view of law which would make complainant arbiter of forum for he would have only to pitch high his allegations to get an enquiry conducted by Sessions Judge followed by trial for an offence howsoever trivial and petty‑‑Case under S. 304, Penal Code, had to go to concerned Magistrate Section 30 unless it was received by Sessions Court under S. 347 or S. 528(1) Cr.P.C.‑‑Order of Sessions Judge, held, was proper‑‑Order of High Court set aside.

Mian Inamul Haq, Advocate Supreme Court with Sh. Masud Akhtar, Advocate‑on‑Record for Appellant.

Mobashir Latif Ahmad, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 5th October, 1985.

Leave to appeal has been granted to an accused facing trial before a Magistrate under section 304 P.P.C. to examine whether the judgment of the High Court, dated 3‑6‑1978 correctly interpreted and applied section 193 Cr.P.C. read with section 265‑D Cr. P.C. in directing his trial by the Sessions Judge himself.

An occurrence took place on the 18th of July, 1977 in which one Muhammad Yar was injured and a case was registered initially under section 307 P.P.C. As he died of the injuries, the charge was altered to 302 P.P.C. However, after investigation, the appellant was put up for trial under section 304 P.P.C. The complainant felt dissatisfied with it and filed a complaint under section 302 P.P.C. in respect of the same occurrence against him. The Magistrate sent the complaint to the Court of Sessions under section 190(3) Cr P.C. The learned Sessions Judge sent the complaint to the Magistrate for inquiry under section 202 Cr.P.C. The Magistrate conducted an inquiry and reported that a case under section 304 P P.C. was prima facie made out and not one under section 302 P.P.C The Sessions Judge agreeing with the report of the Magistrate ordered that the trial of the accused should take place before the Magistrate under section 304 P.P.C.

Aggrieved by this order the complainant approached in revision Lahore High Court where his Revision Petition was accepted, the order of the Sessions Judge sending the case to the Magistrate for trial was set aside and the Sessions Judge was directed to proceed with the trial of the complaint as well as the challan case after getting the latter on his file.

Mr. Masood Akhtar, the learned counsel for the appellant submitted that the order passed by the learned Sessions Judge was within four corners of his legal powers that there was no jurisdictional infirmity nor legal error such as to attract the interference of the High Court. On merits also it was contended that such a procedure as was adopted by the Sessions Judge was proper and the only permissible one in the circumstances of the case.

"The learned counsel for the respondent on the other hand contended that the complaint could be dismissed by the Sessions Judge only if he found no offence to be made out. If any offence was found to be made out then he was required by section 265‑D of the Cr.P.C. to proceed with the trial and could not abstain from doing so on the only ground that it was not a case under section 302 P.P.C. According to him, it was eminently a proper order passed by the learned Judge in the High Court and it could not have caused any prejudice to the appellant.

The learned State counsel has also supported the learned counsel for the respondent and pleaded the bar of section 265‑D Cr.P.C. in dismissing the complaint when some offence, even though different from one under section 302 P.P.C. was prima facie found to have been made out.

The police after investigation came to the conclusion that it was prima facie an offence under section 304 P.P.C. The learned Sessions Judge after getting an inquiry conducted also came to the same conclusion. The Magistrate who conducted the enquiry was also of the same view. The High Court by the impugned judgment has not reversed this conclusion of fact. It has rather proceeded, and rightly so, on the assumption that on facts this may be the correct view. The High Court's findings is, therefore, correct to the extent that once some offence is made out on a complaint or on a report of the police the mandate of section 265‑D Cr.P.C. is that the accused should be tried for that offence by framing charge. But to hold that the Sessions Judge must hold the trial himself and cannot entrust the case to any other competent Magistrate or Court, would be a narrow, pedantic view of the law which will make the complainant arbiter of the forum for he has only to pitch high his allegations to get an enquiry conducted by the Sessions Judge followed by the trial for an offence howsoever trivial and petty.

The full impact of the reasoning of the High Court appears from the following portion of the impugned judgment‑‑

"The Sessions Judges can hear Sessions cases sent to them by the Magistrates and there is no provision in section 193 Cr.P.C. and Chapter 22‑A to dismiss a challan case or a complaint case without trial. Learned counsel for the State Mr. Khadim Nadeem has conceded and has not opposed the revision petition. Learned counsel for respondent No. 1 had appeared on 14‑5‑1978 but he did not appear on the date of the hearing of the revision."

In cases where the learned Sessions Judge does not come to the conclusion that no case is made out he has to as provided by section 265‑D form a charge to proceed with the case. The section reads as under:‑‑

"'If after perusing the police report, or as the case may be, the complaint and all other documents, and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused, it shall frame in writing a charge against the accused.'

In the present case the learned Sessions Judge sent back the case to the Magistrate for trial. It means that the material brought by the police showed that some offence had been committed. In cases where the police has applied wrong section, it does not mean that the learned Sessions Judge should send the case to the Magistrate. If according to him a different offence has been committed, he has to frame the charge under the relevant section and start the trial and convict the accused under the charge if he is found guilty. If the other view is taken it would mean that only under section 302 the learned Sessions Judge can convict and sentence the accused and not under other sections such as 304, 307 etc., if offence under section 302 is not proved. But this does not appear to be the intention of law."

What the learned Sessions Judge dismissed in this case was the complaint under section 302 P.P.C. What he did not dismiss was the complaint under section 304 P.P.C. which appeared from enquiry conducted. What the learned Sessions Judge left for trial by the Magistrate was the case under section 304 P.P.C. The findings of the inquiry in the complaint was not being left unattended. The Court which was entrusted with the trial was competent to try him. It cannot be insisted under the circumstances that if the findings disclosed the commission of an offence, howsoever trivial or petty the offence found, the Sessions Judge who has taken cognizance of the complaint should alone try it to the end and is possessed of no power to entrust it to a competent Court for trial.

Section 12 of the Cr. Procedure Code provides as hereunder:‑‑

The Provincial Government may appoint as many persons as it thinks fit, besides the District Magistrate to be Magistrates of the first, second or third class in any district and the Provincial Government or the District Magistrate subject to the control of the Provincial Government may, from time to time, define local areas within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code.

Except as otherwise provided by such definition, the jurisdiction and powers of such persons shall extend throughout such district."

Section 30 Cr.P.C. provides as follows:‑‑

"In the Punjab, the North‑West Frontier, in Sind and in those parts of the Provinces in which there are Deputy Commissioners or Assistant Commissioners the Provincial Government may, notwithstanding anything contained in section 29, invest the District Magistrate or any Magistrate of the first class, with power to try as a Magistrate all offences not punishable with death".

In view of the distribution and conferment of powers under the above provisions the Magistrate entrusted with the trial of the case under section 304 P.P.C, had the jurisdiction to try it. Under section 347, Cr.P.C. if the Magistrate trying the case at any stage feels "that the case is one which ought to be tried by the Court of Sessions or High Court he shall send the case to the Court of Sessions or High Court for trial." A case under section 304 P.P.C. had to go to the concerned Section 30 Magistrate unless it was received by the Sessions. Court under section 347 Cr.P.C. or 528 (IC) Cr. P.C.

The order passed by the Sessions Judge was a competent, legal and proper order. We accept the appeal, set aside the impugned judgment of the High Court and restore that of the Sessions Judge.

M. Y. H. Appeal accepted.

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