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Criminal Appeal No. 61 of 1962, decided on 18th December 1962.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 20th June 1960, in Criminal Revision No. 906 of 1959.)
, S. 209 read with S. 253 ‑ Commitment case ‑ Order of Magistrate discharging accused under section 253, held, not proper.
, S. 209‑Inquiry preliminary to commitment‑Magistrate in first instance, to decide of what offence accused should be charged, and thereafter to say whether to commit accused to Court of Session or to try under his own powers.
Shaukat Ali Advocate Supreme Court instructed by M. Saleem Chaudhary Attorney for Appellant.
M. B. Zaman Advocate Supreme Court instructed by Ijaz Ali Attorney for Respondent.
Date of hearing : 18th December 1962.
As we do not propose to interfere with the order for retrial, it is desirable that we should say nothing about the facts of the case. We observe, however, that the learned Single Judge in the High Court has directed that a charge should be framed under section 302, P. P. C. and that the case should go for trial to a Sessions Court. There are indications on the record that the challan was put up under section 304, P. P. C. and on referring to the tally of injuries observed on the corpse of the deceased, we are able to see the reason for the doubt so appearing. In none of the three judgments delivered in the case by the Courts below has the question been examined of the nature of the offence, as revealed by the injuries found.
We do not propose to express any opinion on the point ourselves. The matter is justiciable, and should be decided by the ordinary procedure. The case is one of death by violence, and we agree with the view of the learned Single Judge that there should be a trial. The order of the Magistrate, discharging under section 253, Cr. P. C. (which is applicable to the trial of warrant cases by Magistrates) in a case which, as his order shows, he was dealing with as an enquiry preliminary to commitment to Sessions cannot be regarded as a proper disposal of the matter. But we consider that, in view of the unusual nature of the injuries appearing, the determination of the offence to be charged should be left to the Committing Magistrate. According to the procedure laid down, it is for the Magistrate dealing with such) an enquiry to decide, in the first instance, of what offence the accused person can, on the evidence, be charged and thereafter to decide whether he will commit the accused person to Sessions for trial, or will try him under his own powers, if they be sufficient to cover the charge.
We allow this appeal to this extent that we direct that the case should be returned to the committing Court, to be proceeded with according to law, in the light of the observations we have made above.
K. B. A./A. H. Appeal partly accepted.
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