MUHAMMAD JEHANGIR ARSHAD, J.---Through this constitutional petition, Abdur Razaq complainant of case F.I.R.No.11 of 2005, dated 6-1-2005, registered with Police Station Sadar, Ahmadpur East under sections 302/148/ 149, P.P.C., seeks annulment of orders, dated 30-4-2005 and 2-6-2005 passed by Mr. Muhammad Khalid Rasheed, learned Additional Sessions Judge, Ahmadpur East whereby he returned the challan of said case and directed the prosecution to submit fresh challan/report under section 173, Cr.P.C. In the Court of Magistrate Section 30 by converting the offence S.302, P.P.C. Into 322, P.P.C.
2. The facts as emerged out of this constitutional petition briefly stated are that Abdur Razaq petitioner got registered the above mentioned criminal case for the murder of his real brother Mushtaq Ahmad. After the completion of investigation, the S.H. O. /Investigating Officer prepared his report under section 173, Cr.P.C. On 18-2-2005 recommending the prosecution of Muhammad Ajmal, Abdul Latif, Allah Wasaya and Naseer Ahmad under section 322, P.P.C., however, the other co-accused namely, Muhammad Bakhsh, Ghulam Rasool, and Ghulam Farid were placed in column No.2 of the said report/challan. When the challan was forwarded to the prosecution branch, the concerned person in the said branch being not satisfied, sent the same back with some objections, whereafter second report/ challan was prepared on 11-3-2005 under sections 302/148/149, P.P.C. Against Muhammad Ajmal, Abdul Latif, Allah Wasaya and Naseer Ahmad whereas the remaining accused Muhammad Bakhsh, Ghulam Rasool and Ghulam Farid were placed in column No.2 having been found innocent. This second challan was forwarded by the District Attorney, Bahawalpur on 14-3-2005 for trial and ultimately the same was sent up to the Court of competent jurisdiction by the learned Illaqa Magistrate.
3. On receipt of the challan the learned trial Court also summoned those persons who had been placed in column No.2 of the report/challan to face trial. However, it appears that the accused moved their after arrest bail application before the learned trial Court and along with the said application, another application was submitted with the request that as prima facie from the facts and circumstances of the case offence under section 322, P.P.C. Was made out, hence the challan be sent back to the Judicial Magistrate Section 30, for trial under section 322, P.P.C.
4. Both the said applications came up for hearing before Mr. Muhammad Khalid Rasheed, learned Additional Sessions Judge, Ahmadpur East on 30-4-2005 who allowed bail application to the extent of some accused whereas rejected the same to the extent of remaining accused. However, through the same order i.e., dated 30-4-2005, the learned Additional Sessions Judge, Ahmadpur East also decided the above mentioned second application moved by the accused, in the following terms:-- "Although opinion of the police is not binding on the Court but the evidence collected by the police, investigation conducted, deliberations recorded in Zimnis and factual position of the events have led me to the conclusion that offence under section 322, P.P.C. Is made out, therefore, this application is accepted. The offence under section 322, P.P.C. Is triable by the Court of Magistrate Section 30. File be placed before worthy District and Sessions Judge, Bahawalpur so that the same may be entrusted to Court of competent jurisdiction. Accused be produced in the Court of worthy Sessions Judge, Bahawalpur on 6-5-2005."
5. On receipt of the above said reference sent by said learned Additional Sessions Judge, Ahmadpur East, the learned Sessions Judge, Bahawalpur answered the same on 23-5-2005 in the following terms:-- "So far as the order of the learned Additional Sessions Judge, for entrustment of the case to the Court of Magistrate Section 30 it is not tenable in law. Under section 190(2) of Cr.P.C. The Magistrate taking cognizance under subsection (1) of an offence triable exclusively by the Court of Session shall, without recording any evidence, send the case to the Court of Session for trial. A Court of Session could not take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190(3), Cr.P.C. The case was entrusted to the Court of the learned Additional Sessions Judge, Ahmadpur East vide order, dated 28-3-2005. If that Court has come to the conclusion after applying its judicial mind that in fact a case under section 322, P.P.C. Is made out then it should have sent the case to the prosecution branch with the direction to proceed in the case according to law instead sending the case to this Court for entrustment to any other Court.
' The reference is sent back to the learned referring Court with the direction to send the case to the prosecution with the direction that it may proceed in accordance with law in view of the Court order, dated 30-4-2005. The parties shall appear in the said Court on 27-3-2005."
6. In the light of the above mentioned order of the learned Sessions Judge, Bahawalpur, dated 23- 5-2005 Mr. Muhammad Khalid Rasheed, learned Additional Sessions Judge, Ahmadpur East decided the matter on 2-6-2005 in the following terms:-- "Reference was contested in the Court of learned Sessions Judge, Bahawalpur. Both the parties were heard. On 23-5-2005 the learned Sessions Judge, Bahawalpur passed an order that the case should be sent to the prosecution branch with the direction to proceed in the case according to law. In view of observation of the learned Sessions Judge, Bahawalpur file is sent to the prosecution branch.
' After completion of all legal formalities as observed in my order, dated 30-4-2005 and order of the learned Sessions Judge, Bahawalpur, dated 23-5-2005 a fresh challan be prepared under section 173, Cr.P.C. And be submitted in the Court concerned on 13-6-2005."
' The above mentioned two orders, dated 30-4-2005 and 2-6-2005 are now the subject-matter of this constitutional petition.
7. It has been strenuously argued by Mr. Mumtaz Hussain Bazmi, learned Advocate representing the petitioner that the F.I.R. Was registered under section 302, P.P.C. And the contents of the said F.I.R. As well as from the final report submitted by the prosecution under section 173, Cr.P.C. Prima facie the commission of offence under section 302, P.P.C. Was made out and without framing the charge and recording of evidence, the learned Additional Sessions Judge, could not opine that it was a case of commission of offence under section 322, P.P.C. And if at any later stage it was made out that in fact accused should have been tried under section 322, P.P.C., the learned trial Court either by resorting to provisions of section 227, Cr.P.C. Could alter the charge or even without alteration of charge could convict the accused under section 322, P.P.C. By invoking section 238, Cr.P.C. As the offence under section 322, P.P.C. Being minor offence, the accused could have been convicted even without framing a charge to that effect.
8. Syed Shaheen Masood Rizvi, A.A.-G. Appearing on behalf of the State on Court's call besides fully supporting and subscribing to the contentions of the learned counsel for the petitioner, has added that in all fairness, the learned Additional Sessions Judge was not right in deciding the matter in a summary/hasty manner without framing of charge or waiting for some piece of evidence to be produced by the prosecution. The learned A.A.-G. Further' added that if the learned Additional Sessions Judge was of the view that no case uncle: section 302, P.P.C. Was made out against the accused, he could at the most proceed to decide the same by applying the provision of section 265-K, Cr.P.C. But without waiting for recording of the evidence, it was not proper for the learned Additional Sessions Judge, to give his opinion that in fact it was a case of section 322, P.P.C. And not of section 302, P.P.C. At initial stage and that too in a summary/hasty manner.
9. On the other hand Malik Sadiq Mahmood Khurram Advocate, learned counsel for the accused/respondents has not only opposed this writ petition but has also fully supported the impugned orders of the learned Additional Sessions Judge, by placing reliance on "Ghulam Haider v. Alah Yar and others" (1986 SCM R 139) and "Muhammad Rasheed v. The State" (NLR 1995 Criminal 44). He has also argued that the Investigating Officer prepared his report under section 173, Cr.P.C.
On 18-2-2005 and recommended the prosecution of the accused/respondents for an offence under section 322, P.P.C., the Prosecution Branch had no authority either to return or reject the said report, hence the second report prepared by the Investigating Officer on 11-3-2005 recommending for the prosecution of the accused/respondents under section 302, P.P.C. Was without lawful authority and could not be acted upon for the purpose of commencement of trial including the framing of charge against the respondents/ accused. In the view of learned counsel for the accused/respondents, the learned Additional Sessions Judge, Ahmadpur East has not committed any illegality or irregularity while passing the impugned orders which were passed within the exercise of lawful jurisdiction.
10. I have considered the arguments of the learned counsel for the parties in minute details and have also gone through the record as well as case-law referred to above by the learned counsel for the accused/ respondents.
11. I am afraid that the method adopted by the learned Additional Sessions Judge, Ahmadpur East while passing both the impugned orders and deciding the fate of the case at its initial stage without framing of charge and even waiting for recording of prosecution evidence and also by brushing aside the report under section 173, Cr.P.C. Cannot be approved either in terms of any provisions of Cr.P.C. Or in the safer administration of justice. If the trial Court is allowed to act in such a summary/hasty manner or such an authority to decide the fate of a criminal case at such an initial stage, can be conferred on Courts; God knows what would happen to our judicial system, because in such an eventuality the trial Court would be at liberty to decide the guilt/innocence of the accused just by writing a few words like the following few lines as written by the learned Additional Sessions Judge, Ahmadpur East in the impugned order, dated 30-4-2005:-- "Although the opinion of the police is not binding on the Court but the evidence collected by the police investigation conducted, deliberation recorded in Zinins and factual position of the events have led me to the conclusion that offence under section 322, P.P.C. Is made out."
' I am at loss to understand as to what prompted the learned Additional Sessions Judge to burn the mid-night oil in this case by first passing the order, dated 30-4-2005, referring the matter to the learned Sessions Judge, Bahawalpur and then passing the final order, dated 2-6-2005. No man would have objected had the learned Additional Sessions Judge instead of putting such an exercise, framed charge on the basis of contents of the F.I.R., outcome of the report under section 173, Cr.P.C. Recorded some material evidence and if thereafter the learned trial Court prima facie had come to the conclusion that the charge need to be altered under section 227, Cr.P.C. Only then he could proceed with the trial on the basis of available material and if necessary he could even alter the charge within the meaning of section 238, Cr.P.C. Or could straightaway convict the accused under section 322, P.P.C. Being offence minor to one under section 302, P.P.C. Without framing the charge in terms of section 322, P.P.C. If any authority is needed "Muhammad Ilyas v. The State (1972 SCM R 255) is answer to the same.
12. I have also thoroughly gone through the case-law referred to above by the learned counsel for the accused/ respondents and have not been able to find the same applicable to the facts and circumstances of this case as both the judgments are distinguishable.
13. The upshot of the above discussion is that this writ petition is allowed, both the impugned orders passed by the learned Additional Sessions Judge, Ahmadpur East i.e. 30-4-2005 and 2-6-2005 are set aside being without lawful authority and also not in consonance with the safer administration of justice. It is accordingly directed that the trial of the case would proceed from the stage prior to 30-4-2005 as it was. It is, however, made clear that the above mentioned findings/observations are purely tentative in nature and meant for disposal of this writ petition and the learned trial Court would be at liberty to decide the nature of charge at any stage within the meaning of section 227 or 238, Cr.P.C., as the case may be.
14. Since Mr. Muhammad Khalid Rasheed, Additional Sessions Judge, Ahmadpur East showed undue haste in passing the above mentioned impugned orders, I, therefore do not feel proper that the trial of the case is entrusted to him. The learned Sessions Judge, Bahawalpur is, therefore, directed to entrust the said case to any other Additional Sessions Judge available at Ahmadpur East.
' Copy of this order be sent to Mr. Muhammad Khalid Rasheed, Additional Sessions Judge, Ahmadpur East with the advice that he should act like a Judicial Officer and not as a lynch man.
' C.M. 1979/05
15. As the main writ petition stands disposed of, the bail application of some of the accused persons pending before the learned Magistrate, Ahmadpur East, after setting aside the above mentioned impugned orders, shall now be dealt with by the learned Additional Sessions Judge, Ahmadpur East to whom the trial of the case is entrusted by the learned Sessions Judge, Ahmadpur East. Disposed of as such.