This order would dispose of petition filed by Muhammad Yaqoob, Muhammad Shafi and Muhammad Rafi, under section 561-A, Cr. P. C. For quashing the proceedings in case titled Muhammad Ismail v. Muhammad Shafi and 3 others, under section 302/34/109, P. P. C., pending in the Court of Additional Sessions Judge, Lahore.
2. Muhammad Ismail (respondent) filed complaint against Muhammad Shafi and three others under section 302/34/109, P. P. C. In the Court of Sessions Judge, Lahore, on 21-5-1976, who transferred it to the Additional Sessions Judge. The learned Additional Sessions Judge, after recording the statement of Muhammad Ismail complainant on 20-7-1976, sent the complaint to the Ilaqa Magistrate under section 202, Cr. P. C. For inquiry. The inquiry was conducted by the Ilaqa Magistrate who sent his report to the learned Additional Sessions Judge on 10-11-1--76. Preliminary arguments were beard by the learned Additional Sessions Judge and the petitioners were summoned under section 302/34, P. P. C, vide order dated 12-1-1977.
It was contended by the learned counsel for the petitioners that the learned Additional Sessions Judge could not take cognizance of the case as a Court of original jurisdiction; that cognizance could be taken only if the case had been sent to him under section 190(3), Cr. P. C. In support of his contention, he cited case titled Muhammad Aslam v. Natho Bibi (Law Notes 1977 Lah. 41).
4. The learned counsel for the respondent submitted that irregularity, if any, was curable under section 537, Cr. P. C. He further submitted that no prejudice had been caused to the petitioners on account of the impugned order.
5. Provisions of section 193(1), Cr. P. C. Were amended by Law Reforms Ordinance, 1972. Relevant item No. 73 came into force in the province of Punjab w.e.f. 26-12-1975. 7 he words the accused has been committed to it by a Magistrate duly empowered in that behalf have been substituted by the words the accused has been sent to it under section 190 subsection (3). Prior to the amendment, it was laid down in section 206, Chapter XVIII, Cr. P. C., that District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class, or any Magistrate not being a Magistrate of third class empowered in this behalf by the Provincial Government, may commit any person for trial to Court of Session or High Court for any offence triable by such Court. Chapter XVIII has been omitted through Item No. 82 which came into force on 26-12-1975. It has been clearly provided in section 193(3), Cr. P. C. That no Court of Session shall take cognizance of any offence as a Court of original jurisdiction, unless the case has been sent to it under section 190, subsection (3). It is mandatory provision of law. It cannot legitimately be. Argued that the taking of cognizance by the Court of original jurisdiction is a defect in form only and not in substance. The word "May" in section 190, Cr.
P. C. Is used because there are three separate sets of circumstances laid down upon which cognizance may be taken and the word "may" merely empowers the Magistrate to take cognizance of any offence in the three circumstances mentioned in clauses (a), (b and (c) of subsection (1). Under these circumstances, the word "may' is .To be interpreted as "must". I fully agree with the views expressed b my learned brother in case referred to above. Since the learned Additional Sessions Judge could not take cognizance of the complaint as a Court o original jurisdiction, I accept this petition and quash the proceedings, but this order shall not prevent the complainant from making a fresh complain in accordance with law.