' Petitioner is aggrieved of order dated 2-12-2004 passed by learned Sessions Judge, Bahawalpur whereby directly entertaining a private complaint under sections 302/148/149, P.P.C. Filed by Nasir Mehmood respondent No,2 against the petitioner and some others the learned Sessions Judge, entrusted the same to Rana Masood Akhtar, learned Additional Sessions Judge, Bahawalpur and also the order of even date by which the learned Additional Sessions Judge directed to register the said complaint and adjourned the same to 10-12-2004 for recording preliminary statement of the complainant and further the order, dated 10-12-2004 by which the learned Additional Sessions Judge after recording preliminary statement of complainant sent the said complaint to the Court of Mr. Shahzad Muzaffar Hamdani, learned Judicial Magistrate, Bahawalpur for holding inquiry as required under section 202, Cr.P.C. In order to ascertain truth or falsehood of the same and submission of his report after conclusion of inquiry.
2. The facts briefly stated are that Nasir Mehmood respondent No,2 filed the above-mentioned complaint directly in the Court of learned Sessions Judge, Bahawalpur on 2-12-2004 in connection with the murder of his brother Muhammad Shahzad having been dissatisfied with the investigation conducted by the police in challan case F.I.R. No,177/2004 dated 16-4-2004 registered with Police Station Baghdad-ulJadid under sections 302/148/149, P.P.C. The learned Sessions Judge, Bahawalpur on the same date i,e, 2-12-2004 transferred the said complaint to Rana Masood Akhtar, learned Additional Sessions Judge, Bahawalpur before whom the file of challan case was pending and the learned Additional Sessions Judge on 2-12-2004 on receipt of the said complaint directed for the registration of the same and set down the same on 10-12-2004 for recording preliminary statement of the complainant/ respondent No,2. On 10-12-2004 the learned Additional Sessions Judge after recording of preliminary statement of complainant/respondent No,2 sent the same to the Court of Mr. Shahzad Muzaffar Hamdani, learned Judicial Magistrate, Bahawalpur for holding inquiry as required under section 202, Cr.P.C. In order to ascertain truth or falsehood of the same and directed the Judicial Magistrate to submit his report of preliminary inquiry on 5-1-2005.
The petitioner Muhammad Tayyab Abu Bakar submitted an application before the learned Additional Sessions Judge on 2-12-2005 complaining that as the very reception/entertainment of complaint by the learned Sessions Judge directly hence the same was liable to be dismissed having been received/entertained in violation of mandatory provisions of section 193, Cr.P.C. This application was contested by Nasir Mehmood complainant/respondent No,2 and the learned Additional Sessions Judge vide order, dated 12-2-2005 by not agreeing with the contention of the petitioner dismissed the said application holding that the receipt/entertainment of complaint by the learned Sessions Judge and in consequence thereof its entrustment to the learned Additional Sessions Judge was in conformity with the law, hence the private complaint could not be dismissed merely on technical grounds. This order of the learned Additional Sessions Ridge has now sought to be quashed through this- criminal revision by Muhammad Tayyub Abu Bakar, one of the accused.
3. Syed Asim Ali, Advocate appearing on behalf of the petitioner and in support of this petition has argued that in terms of section 190(2), Cr.P.C. Only the Magistrate could take cognizance of any offence and the Court of Session had no jurisdiction to take cognizance of any offence as a Court of original jurisdiction unless the case had been sent to it under section 190, Cr.P.C. And by directly entertaining the complaint 'of the respondent No,2 the learned Sessions Judge acted illegally with material irregularity and all the proceedings conducted in the complaint from 2-12-2004 till date were without jurisdiction. To support his contention learned counsel for the petitioner has placed reliance on the case of Riffat Hayat v. Judge, Special Court for Suppressions of Terrorist Activities, Lahore and another 1994 SCMR 2177; Bismillah Khan and another v. The State 2001 PCr.LJ 481; Talib Hussain and another v. Muhammad Aslam and another 1997 PCr.LJ 56 and Muhammad Aslam and 2 others v. Mst. Natho Bibi PLD 1977 Lah.
535.
4. On the other hand, Mr. Aslam Javed Minhas, Advocate, learned counsel for respondent No,2 has not only contested this petition but also supported the impugned order of the learned Additional Sessions Judge by contending that the violation of sections 190 and 193, Cr.P.C. Is mere irregularity and no prejudice has been caused 'to the petitioner as the same is cureable especially when the petitioner is already facing trial of challan case before the same Court. In support of his contention he has also placed reliance on the case of Mst. Mariam Sultana v. The State PLD 2000 Quetta 12 and the case of Muhammad Saeed and 6 others v. The State and others PLD 1984 SC 29.
5. I have considered the arguments of the learned counsel for the parties and have also gone through the judgments cited above.
6. In view of the law declared by .Honourable Supreme Court of Pakistan in the above said judgments which are binding on all the Courts per force of Article 189 of the Constitution of Islamic Republic of Pakistan this Court while sitting in revisional jurisdiction cannot take a different view.
Since it has been consistently held in all the above mentioned authorities referred to by the learned counsel for the petitioner that Sessions Judge cannot take cognizance of any offence as a Court of original jurisdiction unless the same has been sent to it by a Magistrate A under section 190(2), Cr.P.C. Hence to say with all respects to the view taken by the Quetta High Court, in the above cited judgment, that direct entertainment of complaint by the Sessions Judge is just an irregularity and can be ignored cannot be considered as a correct view nor has any legal value as the same is prima facie violative of the mandate of Honourable Supreme Court of Pakistan in the above mentioned judgments. Similarly the facts of the case before Honourable Supreme 'Court of Pakistan reported in 1984 SC 29 were different and distinguishable as the same involved the question of territorial jurisdiction of the learned Sessions Judge, hence the above mentioned judgment of the Supreme Court is not applicable to the present case. I am, therefore, inclined to agree with the contention of learned counsel for the petitioner that the learned Sessions Judge was not competent to entertain/take direct cognizance of the complaint filed by respondent No,2 without having been sent up to him by the Magistrate as required under section 190(2), Cr.P.C. Read with section 193, Cr.P.C. Resultantly this petition is allowed and all the proceedings taken by the learned Sessions Judge, Additional Sessions Judge, and the learned Magistrate from 2-12-2004 to date are declared as without jurisdiction and also without lawful authority, hence the same are quashed. Resultantly, the complaint filed by respondent No,2 directly and received/entertained by the learned Sessions Judge, Bahawalpur stands dismissed. However, respondent No,2 may, if so advised, file fresh complaint by following the procedure as laid in section 190, Cr.P.C.
Revision .