This is an application under' section 561-A, Cr. P. C. For quashment of proceedings held before learned Magistrate Ist Class in case for the offences under section 307/324/325/ 142/ 148/ 149, P. P.
C. And the resultant order of learned Sessions Judge, Kasur for issuance of warrant for the arrest of the accused, petitioners herein, to answer the said charges.
2. The facts relevant for disposal of the instant application can be conveniently confined to the very minimum as merits of the case do not present any difficulty. The proceedings held before learned Magistrate culminating into the order for issue of process against the petitioners by learned Sessions Judge are patently without jurisdiction. Muhammad Shafi respondent (2) preferred this complaint before learned Assistant Commissioner, Chunian, also empowered as Magistrate First Class alleging therein commis--sion of several offences by the petitioners inclusive of the offence of attempted murder under section 307, P. P. C. Punishable with life imprisonment. Before proceeding further it may be stated here that a case of murder and attempted murder etc. Rising out of the incident subject-matter of this complaint was already pending on the file of learned Sessions Judge, Kasur. Some of the petitioners are witnesses of occurrence in the said case and Muhammad Hanif and Muhammad Sharif who were also allegedly subjected to murderous assault by the petitioners and their father Rehmat Ullah are accused in that case. A prayer was, therefore, made in the concluding para of the complaint that the case be sent to the Court of Session after taking cognizance under section 190(3) Cr. P. C. Meaning thereby that both cases be tried before Court of Sessions Judge simultaneously which was necessary in law. However, learned Magistrate chose to assume jurisdiction in the case, proceeded to examine the complainant under section 200, Cr. P. C. And launched upon preliminary inquiry into the allegations made in the complaint which led him to the view that on the evidence examined before him, a prima facie case had been made out against the petitioners. Learned Magistrate ordered that the accused be summoned and the file be sent to the Court of Session at Kasur where cross case of murder against the complainant party concerning the same occurrence was pending. On receipt of record learned Sessions Judge proceeded to issue warrants for the arrest of the petitioners merely for the reasons that the learned Magistrate had held that prima facie case had been made out against the accused. Section 28, Cr: P. C. Empowers High Court and Court of Session to try any offence under the Penal Code. Any other Court shown in the 8th column of the Second Schedule can also try the offence under the Penal Code. According to the Schedule, offence under section 307, p. P. C. Is triable before a Court of Session. The Courts under Cr. P. C. Are classified under section 6 which includes Courts of Magistrates of various categories such as Magistrate Ist Class etc. Evidently, section 28 is subject to the other provisions of the Code. A Magistrate Ist Class empowered under section 307, Cr. P. C. Is competent to try all offences not punishable with death. It will be shown that the accused charged with the offence under section 30, P. P. C. Can be tried before Court of Session or a Magistrate invested with enhanced powers under section 30, Cr. P. C. Assistant Commissioner, Chunian who admittedly exercised first class Magisterial powers was not competent to assume jurisdiction in the case. Order of learned Sessions Judge which was merely premised on the proceedings before learned Magistrate and latter's finding that there was a prima facie case against the petitioners and also does not manifest declaration of his independent mind is equally a nullity.
3. Learned counsel for the respondent (2) conceded that the proceedings were liable to be quashed as vitiated by assumption of jurisdiction by the learned Magistrate which did not invest in him in law and the order of learned Sessions Judge was vitiated with irregular exercise of jurisdiction on the basis of finding of learned Magistrate that there was a, prima facie case against the accused. Learned counsel hat, however, chosen to bank upon a few technicalities to meet the situation,
4. Petitioners were admitted to bail ad interim on 30-5-1978 when the petition was admitted to regular hearing. Learned counsel for the respondent (2) has today filed an application under subsection (5) of section 497, Cr. P. C. That the petitioners who were allowed bail (ad interim) be caused to be arrested and committed to custody before proceeding to hear and finally determine the quashment application, for the reason that the order was passed without notice to the complainant in the case which was violative of second proviso to section 497, Cr. P. C. The said proviso was added to the section by means of Criminal Procedure (Amendment) Act (XXV of 1974).
The contention cannot be evalued. Interim order is always subject to all just exceptions. The proceedings before the learned Magistrate were on his own admission in the report that he had not been conferred powers under section 30 ex facie without, jurisdiction and the order of learned Sessions Judge which was a supers4ucture of the proceedings before the learned Magistrate was equally vitiated with illegality. The petitioners could not, therefore, be denied interim relief, so as to redeem them of the effect of such proceedings, viz. Detention in the lock-up which was prima facie not lawful. Assumption by Court of jurisdiction not vested in it by law is tantamount to violation of the right, call it statutory or constitutional of the accused. In any event, it is extreme thing to say that the order of bail ad interim be first withdrawn, the petitioners be pushed back into the lock-up and thereafter the question whether or not the proceedings which suffer from a patent vice of lack of jurisdiction be considered and determined.
5. Learned counsel for the respondent also argued that the petition was liable to be dismissed summarily as inherent jurisdiction under sec--tion 561-A, Cr. P. C. Can be invoked only when no other remedy was available under the Code. The petitioners should have invoked revisional jurisdiction of this Court under section 435/439, Cr. P. C. This contention also could not be sustained for more than one reason. The instant petition can be treated as revisional application. Courts have the power to treat and convert one kind of proceedings into other kind of proceedings, which powers must be used liberally to ensure disposal of cases on merits. Technicalities which are adjunct of law cannot be allowed to prevail upon so as to defeat the process of law. The contention even otherwise also does not have serious merit in it. Ordinarily, inherent jurisdiction which is not are alternative jurisdiction or additional jurisdiction, should not be invoked when another remedy is available. But this is the general rule and not an inflexible rule of universal application. The question if inherent jurisdiction be exercised or not has to be determined on the facts of a given case.
Inherent jurisdiction may be exercised to avert abuse of process of Court, where the proceedings are found to suffer from jurisdictional error as was the position in the instant case even though some akin remedy may be available. In Fateh Muhammad v. Chairman, Union Committee, Ward No. 14/15 (PLD 1975 Lah. 951), proceedings in the complaint against the petitioner for the offence of bigamy were quashed for the reason that learned Magistrate bad taken cognizance of the offence an the basis of the complaint filed by Chairman for which he was not competent in law. In that case also the accused (petitioner) could file revisional application before Court of Session or High Court.
6. It was urged on behalf of the petitioners that the order of quashment of proceedings should have the effect of wiping off the case altogether. The matter should be treated as a closed chapter.
The petitioners had suffered unlawful detention in the lock-up for about 3 months, in consequence of the orders based on proceedings which were void altogether. It will not, therefore, be fair to the petitioners that proceedings should be held afresh which would mean venation of the petitioners twice for the same offence. I have failed to bring myself round to accept the contention. The principle that a man cannot be put twice in peril for the same offence does not apply if the proceedings which were quashed were held before a Court not competent to proceed with the case.
7. In the result, the application is accepted, proceedings before the learned Magistrate after he had taken cognizance of the offence under section 190, Cr. P. C., viz. The examination of the complainant (respondent) under section 200, Cr. P. C. Recording of preliminary evidence under sec--tion 202, Cr.
P. C. And the finding that petitioners were prima facie guilty of the charges as also the order of learned Sessions Judge for issuance of warrants for arrest of the petitioners, which he had passed on the basis of findings of the learned Magistrate are quashed. Learned Sessions Judge to proceed with the case from the stage envisaged in section 200, Cr. P. C., He will record statement of the complainant (respondent), may issue process, if he feels so advised, or may postpone the issue of process and either enquire into the case himself or direct an enquiry to be made by a Magistrate etc. Before issuing the process in accordance with law.