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Writ Petition No.175 of 1987, decided on 3rd February, 1987.

‑‑‑Art. 199‑‑Criminal Procedure Code (V of 1898), Ss. 28, 203 & 439‑ Penal Code (XLV of 1860), Ss. 506, 354‑A/34‑‑Private complaint‑ Quashing of orders‑‑Private complaint lodged before Ilaqa Magistrate, sent up for trial before Sessions Judge‑‑Sessions Judge after preliminary inquiry, finding evidence not disclosing any offence under S.354‑A, P.P.C. but finding prima facie case under Ss. 354 & 506, P.P.C. transferred case to Ilaqa Magistrate for trial‑‑Sessions Judge, after completing inquiry, held, could only summon accused to face trial or reject complaint‑‑ Transfer of case to Ilaqa Magistrate for trial was, therefore, without lawful authority and exercising revisional powers, order of Sessions Judge was set aside and inquiry proceedings remanded back to him to decide either to dismiss complaint or summon accused to face trial under Ss. 354 & 506/34.

Ghulam Hussain and others v. The State 1985 P Cr. L J 2334 and Muhammad Saeed and others v. The State 1984 P Cr. L J 1373 ref.

Muhammad Zahid Abbasi and Malik Amin Ullah for Petitioners.

Muhammad Akhtar Shabir A.A.‑G. and Syed Zulfiqar Haider for the State.

J.V. Gardner for Respondent No. 1.

Date of hearing: 27th January, 1987.

This judgment will dispose of a constitutional petition (W.P. 175 of 1987) filed by Hakeem Liaquat Ali and three others, petitioners Nos. l to 4, praying that the order of an Additional Sessions Judge of Lahore dated 21‑12‑1986 be declared to have been passed without lawful authority and be quashed and that the complaint filed before him be treated as having been dismissed and a revision petition (Cr.R.19 of 1987) filed by Mst. Sarwar Bano, petitioner, against the said Hakeem Liaquat Ali, and others, respondents Nos. 1 to 4, for the case entrusted to the Ilaqa Magistrate to be withdrawn from the said Court and to be sent back to the learned Additional Sessions Judge, Lahore for trial.

2. The brief facts of this case are that on 9‑3‑1986 Mst. Sarwar Bano (hereinafter to be referred to as "the complainant") filed a private complaint against Hakeem Liaquat Ali and others (hereinafter to be referred as "the accused") in respect of the offences committed by them under sections 354‑A/506/34 P.P.C. The same day, the Ilaqa Magistrate sent up the said case to the Sessions, as the offence under section 354‑A P. P. C . was exclusively triable by the Sessions Judge. On 12‑3‑1986, the learned Sessions Judge, Lahore, entrusted the complaint to one Additional Sessions Judge for disposal. After recording the evidence in the preliminary inquiry, the learned Additional Sessions Judge on 21‑12‑1986 found that the evidence did not disclose any offence under section 354‑A P. P. C . , but that prima facie a case stood made out against the accused under section 354/506, P.P.C. and that since the case was also triable by a Magistrate and as any trial by him would deprive the accused of a forum of appeal in the Sessions, he transferred the case to the Ilaqa Magistrate for trial, with the direction that the Magistrate should summon the accused to face trial. Being aggrieved by the said order, the accused have preferred the writ petition (W.P.No.175 of 1987) before me to have the said order declared to be illegal and to treat the case as one having been dismissed under section 203 Cr.P.C. and the complainant has preferred the revision petition (Cr.R.19 of 1987) to have the case re‑transferred back to the Additional Sessions Judge for trial.

3. I have heard the arguments of the learned counsel for the accused, the complainant and the State. It cannot be denied that under section 28 of the Code of Criminal Procedure the offences under section 354/506/34, P.P.C. can be tried by the Court of Session. See Ghulam Hussain and others v. The State 1985 P Cr. L J 2334 at page 2351. In this view of the matter, the Sessions Judge after having completed the inquiry, had only two courses open to him, either to summon the accused to face their trial or to reject the complaint. See Muhammad Saeed and others v. The State 1984 P Cr. L J 1373 para 4 at page 1375. The transfer of the case to the Ilaqa Magistrate concerned for trial with a direction to him to summon the accused to face the same, appears to be without lawful authority. Acting under section 439 Cr. P.C., I would set aside the order of the learned Additional Sessions Judge dated 21‑12‑1986, to the extent that he deemed it fit to send the case to the Ilaqa Magistrate for trial according to law, directed the complainant to appear before the Magistrate on 28‑12‑1986 and directed the learned Magistrate to summon the accused to face their trial anti would remand the inquiry proceedings back to him with the direction that he should decide whether he proposes to dismiss the complaint or to summon the accused to face their trial under section 354/506/34 P.P.C. and to take action accordingly. With this observation, the revision (Cr.R.19 of 1987) stands disposed of. The writ petition (W. P.No.175 of 1987) stands dismissed.

S. A./L‑2/L Order quashed.

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