SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---Shaukat Ali, respondent No,2, had set into motion criminal machinery by lodging F.I.R. No,1253, dated 26-9-2006 registered under sections 365, 341, 337-A-I(i), 337-L(ii), 147 and 143, P.P.C. At Police Station Nishatabad, District Faisalabad against 13 persons.
2. Initially investigations in the case were conducted by Muhammad Ashraf, Sub-Inspector, but subsequently Basharat Ali Sub-Inspector took over the investigations without sanction of District Standing Board as required by Article 18(6) of the Police Order, 2002. He not only declared all the accused of the F.I.R. Involved in the occurrence but also added offence under sections 342 and 367 P.P.C. Against the culprits.
3. This change of investigations was challenged in Writ Petition No,3676 of 2007 by Muhammad Afzal and this Court on 29-5-2007 accepted the petition and declared the investigations conducted by Basharat Ali, Sub-Inspector, unlawful and of no legal effect and restored the investigations conducted by Muhammad Ashraf, Sub-Inspector.
4. The Police thereafter submitted report under section 173 Cr.P.C. To the learned Area Magistrate under sections 337-A(i), 337-L(ii) 148 and 149 P.P.C., who while taking cognizance of the matter observed that from the perusal of the record, offence under section 367 P.P.C. Is made out and the Court had no jurisdiction to try the case, thus sent the Reference to the learned District and Sessions Judge, Faisalabad for making over the case to some other Court for trial. Subsequently, the learned District and Sessions Judge transferred the case to Mr. Muzammal Qureshi, Magistrate section 30, Faisalabad who framed the charged against the accused persons under sections 342, 337-A(i), 337-L(ii), 148 and 149, P.P.C. On the arrest of co-accused Zafar iqbal, Ramzan and Safarish Ali, Police sent supplementary challan was submitted to the Court of learned Area Magistrate under sections, 367, 342, 337-A(i), 337-L(ii), 148 and 149 P.P.C., who sent the Reference to the learned Sessions Judge with the prayer that the offence under section 367, P.P.C. As per Second Schedule of Code of Criminal Procedure 1898 was exclusively triable by the Court of Session thus prayed for making over the same to the Court of competent jurisdiction. It appears from the record that perhaps the learned Sessions Judge accepted the request of Area Magistrate and entrusted the trial of the case to Mr. Haji Ahmad, Addl. Sessions Judge, Faisalabad, who proceeded to frame charge in the offences including offence under section 367, P.P.C. Subsequently, one of the accused Mohsin Ali filed a transfer application before the learned Sessions Judge, Faisalabad with the prayer that the learned Magistrate had inadvertently sent the Reference to the learned Sessions Judge, which was wrongly entrusted to the Court of Addl. Sessions Judge, thus prayed for sending the case for trial. To the learned Judicial Magistrate. This application was declined by the learned Sessions Judge on the ground that the charge has been framed in the Court, thus lacks jurisdiction to transfer the case. This gave rise to instant petition, in which parties have been heard at length and record as well as case-law-cited at bar examined.
5. The moot point in the instant petition as argued by the parties is that in the Second Schedule attached with the Code, ibid, offence under section 367 P.P,C. Is triable by a Court of Session and in this situation a Judicial Magistrate can take cognizance of the case, which is exclusively triable by the Court of Session according to Schedule. Learned counsel for the petitioner while relying upon the cases of "Allah Wasaya and others v. Sikandar Hayat and others" (2012 SCM R 193) and "Noor Hussain v. The State" (PLD 1996 SC 88) contended that although as per Schedule attached with the Code (supra) the offence under section 367, P.P.C. Is triable by a Court of 'Session but a Judicial Magistrate enjoys powers and there is no bar to decide a criminal case not involving sentence of death. According to the learned counsel, the learned Judicial Magistrate under section 30 has the jurisdiction to decide the case in hand.
6. This proposition has been disputed by the learned D.P.-G. As well as learned counsel for respondent No,2 with the assertion that under section 28(3) of Code (supra) the Court designated in 8th column of the 2nd Schedule of the Code (ibid) can try the offence and according to 2nd Schedule offence under section 367 P.P.C. Is triable by a Court of Sessions, therefore, the learned Sessions Judge has rightly entrusted the matter to the Court of learned Addl. Sessions Judge for commencing the trial.
7. Firstly, I would like to discuss the applicability of section 367 P.P.C. In the facts and circumstances of the case, which has been ignored by the Courts as well as Police officials while sending supplementary challan by adding offence under section 367 P.P.C. As stated in the preceding paras, the matter was brought into the notice of this Court through Writ Petition N.3676 of 2007 and this Court vide order dated 28-5-2007 had declared the investigations conducted by Basharat Ali, Sub-Inspector in the case, of no legal effect and unlawful. With this declaration of this Court all the investigations conducted by Sub-Inspector Basharat Ali became non-existent on the record including addition of the offence under section 367 P.P.C., therefore, there left no jurisdiction with the Police to send the supplementary challan to the Court under section 367 P.P.C. This fact has not been noted by Mr.Awais Muhammad Khan, learned Judicial Magistrate, Faisalabad while sending the Reference to learned Sessions Judge vide order dated 4-11.2010. Similarly Mr. Akhlaq Hussain Raja, learned Sessions Judge entrusted the case to the Court of learned Addl. Sessions Judge in a mechanical manner without examining the record of the case. The learned Magistrate had categorically mentioned in the Reference that as offence under section 367 P.P.C. Has been added, therefore, it has no jurisdiction to commence the trial, which fact should have been noticed by the learned Sessions Judge before entrusting the case to the Court of Session. It appears that both the Officers remained negligent in exercising their jurisdiction. Further when this fact of order of this Court was brought to the notice of learned Sessions Judge by filing a transfer application, he even then did not bother to examine the order of this Court and illegally dismissed the transfer application. Proper way in this situation firstly was to ponder upon the point agitated before the Court and if it was not done then the Court while dismissing the transfer application on the ground that the learned Addl. Sessions Judge has framed the charge in the case, could send the Reference to this Court for transfer of the case. The learned Sessions Judge did not perform either of two options and dismissed the petition without application of his judicial mind.
8. Now the question left for determination is whether offence under section 367, P.P.C. Is triable by the Court of Session or by a Magistrate 1st Class having the powers under section 30 of Cr.P.C. The answer to this question is contained in the cases of Allah Wasaya and Noor Hussain (supra). It was observed by the Hon'ble Supreme Court in both precedent cases that the quantum of punishment does not itself take away the powers of taking cognizance or trying a case which should have been done under section 187 of the Sea Customs Act itself. It is further observed that the limit on the power of awarding punishment does not affect the competence of a Court to try a case. The Magistrate is duly competent to try the case but all that he cannot do is to impose a sentence which is in excess of his powers. In the case of Allah Wasaya (supra), it was observed by the apex Court that in terms of section 30 of Cr.P.C. a Magistrate of 1st Class could try all offences except those punishable with death. In this case the offence charged against the culprits was under section 336, P.P.C., which was triable by Court of Session as per 2nd Schedule of Code (supra). These. Judgments make one thing clear that mere quantum of punishment is not enough to take away the jurisdiction of the Court to try the offence. In this connection section 30 of the Code (supra) clearly manifests that the Magistrate of 1st Class may try all the offences the punishment of which does not involve sentence of death. In this respect it is further observed that 2nd Schedule of the Code, according to section 28(3) governs the cases triable by the Courts of different kind. This section cannot be read in isolation to section 30, which contains non obstante clause making an exception that a Magistrate can try all offences not punishable with death. This provision of the section 30 Cr.P.0 excludes applicability of section 28 in clear terms by making an exception to it in respect of Courts mentioned in the column 8 of 2nd Schedule. Accordingly, a Magistrate 1st Class with powers under section 30 Cr.P.C. Has the jurisdiction to try all those offences, which are not punishable with death. In view of this legal position, one can say safely that the order passed by the Judicial Magistrate on 4-11-2010 by sending Reference to learned Sessions Judge for entrusting the case to the Court of Session as offence under section 367, P.P.C. not triable by it, is an illegal exercise of jurisdiction by the Court concerned. Further the learned Sessions Judge had exercised its jurisdiction mechanically by entrusting the trial of the case to the Court of Addl.
Session Judge without examining the fact that a Magistrate section 30 may try all the offences except those involving death sentence.
9. For what has been discussed above, this petition is allowed and order dated 4-11-2010 passed by the learned Judicial Magistrate as well as of the learned Sessions Judge entrusting the case to the Court of Addl. Sessions Judge are set aside. The case F.I.R. No,1253 of 2006 in the circumstances is withdrawn from the Court seized with the matter and is entrusted to learned Senior Civil Judge, Faisalabad having the power of Magistrate Section 30 for conclusion of the trial of the case expeditiously. Since the, matter is pending in the Court, for the last six years, therefore, learned Senior Civil Judge shall conclude the trial before proceeding on winter vacations. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.