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- Ss. 347 & 190-Penal Code (XLV of 1860), Ss. 302, 304 & 304-A-Case initially registered under S. 304, P. P. C.-Police, after investigation filed challan under S. 304-A, P. P. C.-Magistrate after recording statement of complainant came to the conclusion that case ought to be tried by Court of Session and sent up same for trial to Court of Session -Contention that order by which case was sent up for trial, was passed without proper inquiry and therefore illegal, for Magistrate had no jurisdiction to send case for trial by Sessions Judge because Police had filed challan under S. 304-A,

P. P. C. and if at all case was to be sent up for trial under S. 190 (3), Cr. P. C., Magistrate should not have recorded statement of complainant-Held, there was no illegality in the order of Magistrate in view of provisions of S. 347, Cr. P. C. and order of Magistrate was unexceptionable.

Haft Ghulam Muhammad A wan for Petitioner.

In brief the facts of this case are that on 5 12-1985 a case under section 304, P. P. C. was registered against Muhammad Irshad petitioner at the instance of Taj Din complainant who alleged in the F. I. R. that on that date at about 3 p. m. he alongwith Lal Din and Mairaj Din was proceeding on bicycle from Rana Town to Muridke. When they reached near Punjab Steel Mills a truck driven by Muhammad Irshad accused hit them as a result of which his father Mairaj Din was injured. He was taken to hospital where he died as a result of the injuries. He further stated that the truck was being driven carelessly and rashly. The police after registration of the case filed challan in the Court of Illaqa Magistrate who commenced proceedings of trial against the accused. The learned Magistrate recorded the statement of Taj Din P. W. 1 (complainant) who stated that Muhammad Irshad accused was known to him since about two years because at one time he was in his employment. Irshad accused had not paid him the wages. Mairaj Din deceased, his father, repeatedly asked Irshad to pay him the dues on account of which accused deliberately drove the truck on the bicycle and intentionally killed Mairaj Din. This witness was cross-examined at length. After recording his statement the Magistrate on 26-10-1986 ordered that the case against Muhammad Irshad accused be sent up for trial under section 302, P. P. C. to the Sessions Court. Muhammad Irshad feeling aggrieved by this order filed a revision which was dismissed by learned Sessions Judge, Sheikhupura vide the impugned order dated 4-12-1986. Hence this petition for quashment of the said order.

2. In support of this petition it is contended that the order dated 26-10-1986, by which the case was sent up for trial, was passed without proper inquiry and, therefore, illegal. It is further contended that the Magistrate had no jurisdiction to send, the case for trial by Sessions Judge because the police had filed the chalan under section 304-A, P. P. C. It was finally contended that if the case was to be sent up for trial under section 190(3), Cr. P. C. the Magistrate should not have recorded the statement of Taj Din.

I have considered the contentions on behalf of the petitioner and have also gone through various documents which have been placed on file of this petition. The case was initially registered under section 304, P. P. C. However, after investigation the police filed challan under section 304-A, P. P. C. The learned trial Magistrate recorded the statement of Taj Din complainant and came to the conclusion that the case ought to be tried by the Court of Sessions. He accordingly, by his order dated 26-10-1986, sent up the case for trial to the Court of Session, Sheikhupura. It is not the case of the petitioner that the Sessions Judge was not competent to try an offence under section 302 or section 304 or section 304-A, P. P. C. I do not find any illegality in the order dated 26-10-1986 or in the impugned order dated 4-12-1986. Section 347, Cr. P. C. clearly lays down that "if in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, he shall send the case to the Court of Session or High Court for trial".

In view of the above legal position the two impugned orders are unexceptionable. There is, therefore, no merit in this petition for quashment which is accordingly dismissed.

M. B. A. Application dismissed.

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