' SALAHUDDIN PANHWAR, J.---Instant application is against the Impugned Order dated 27-7-2012, passed by the learned Family Judge and Judicial Magistrate, Khairpur on a report under section 173, Cr.P.C.
2. Relevant facts of the case are that complainant Allah Wadhayo lodged F.I.R. On 25-6-2012, stating therein, that on 5-5-2012, he along with his brothers Ahmed Khan and Muhammad Khan was standing outside of the house. At about 700 hours accused Muhammad Ibrahim and others duly armed with weapons caused injuries to complainant and his brother Muhammad Khan, they proceeded towards hospital and when reached at Kolab Jeeal machine curve, where they were intercepted by accused Khadirn Hussain armed with gun, Mour, Ghulam Akbar, Nek Muhammad, Rabel armed with TT pistols, Adam armed with repeater, Ghulam Abbass, Irshad Ali, Muhammad Ibrahim, Fayaz Hussain having lathies, Riaz having iron rod, Waheed, Ayaz, Aziz with lathis. They abducted the, complainant's son Azher Ali with intention to commit murder. Thereafter complainant and his brother remained under treatment in. Hospital at Khairpur, they lodged -F.I.R.
Investigation was conducted; interim report (challan) was submitted by investigating agency on 1,0-7-2012, against nominated accused, concerned Magistrate accepted the challan by taking cognizance.
3. The record further reveals that according to interim charge-sheet four accused persons nominated in F.I.R., granted bail, six accused persons were under custody while four accused persons were shown as absconders. Subsequently investigation was transferred to DSP Kandiaro, reinvestigation was carried out by him after completion of investigation, final report order A-Class,' was submitted with the finding that due to land dispute complainant has lodged false case, concerned Magistrate by order dated 27-7-2012, accepted report under 'A' class and issued release writ of accused persons confined in judicial custody and case. Was disposed of under A-Class.
4. Counsel for the applicant has inter alia, contended that second Investigating Officer with mala fide intention and ulterior motives recorded the statements of defence witnesses in support of accused persons instead of eye-witnesses of the case and submitted false report under `A'-Class; impugned order is not maintainable under the law as the requirements of `A'-Class are entirely different to the factual and legal position of the subject-matter; offence under section 364, P.P.C.
Was triable by Sessions Court. Therefore concerned Magistrate was not competent to issue release writ, specially, when the cognizance was taken and the matter was pending for proceedings under sections 87/88, Cr.P.C.
5. Learned counsel for the respondents has argued that the case is totally false; in fact such incident was not occurred but due to enmity the respondents have been implicated by the complainant; impugned order is speaking one and legal therefore cannot be challenged before this Court.
6. Learned A.P.-G. Has not controverted the factual and legal plea's raised by the applicant's counsel and conceded to the extent that the impugned order is not maintainable.
7. Heard learned counsel for the respective parties and perused the material available on record.
8. Admittedly F.I.R. Transpires the names of accused persons with specific role attributed to them; the offence was triable by the Court of Session; interim challan was submitted before the concerned Magistrate within 14 days, such report reveals that some accused persons were arrested, some were on bail and remaining were absconders.
9. I have examined the final investigation report and impugned order.
According to the report and impugned order, under ' A '-Class summary was accepted and release writ was issued. In my opinion the facts of the case in hand are B such that disposal of the case under 'A' class seems to be contrary to the law; It would be advantageous to endorse here that according to Bombay Presidency Police Rules only three ways were provided for disposal of a State case which have been termed as A-Class; B-Class; and C-Class. This was then when Sindh was the part of Bombay, since then such practice is continued. It is strange here that concerned persons have no knowledge about the scope of A, B & C-Classes. As per Bombay Presidency Rules, the report for disposal of a case by the police under A-Class could only be made, when case is true but accused is untraceable; for disposal of the case under B-Class the matter should be found to be false, and the disposal of a case under 'C'-Class is when there is insufficient evidence or matter is non-congnizable. It may be added in continuity that report of police for disposal of the case under any class is not binding upon the court.
10. Reverting to the instant case what I find that in the present case names of accused persons with specific allegations were manifest in the F.I.R. So also in the investigation report and even some of them, after getting bail, were facing their trial therefore this cannot be said that in this case the accused were untraceable, therefore the impugned order is illegal on this score alone.
11. Regarding to the contention that learned Magistrate was not competent to issue release writ of the accused I am in agreement with the contention as the interim challan was submitted, some of the accused were on bail, and admittedly the case was triable by the Court of Session. It may be added here that the Magistrate may agree or disagree with police report but once the cognizance is taken on a police report in matters triable by the Court of Session, even on interim police report under section 344, Cr.P.C., the Magistrate is no more competent to pass an order for disposal of such a case on subsequent report (s). It may also be added here that under section. 190(3), Cr.P.C., after taking cognizance if the offence is exclusively triable by the Sessions Court, Magistrate shall without recording any evidence send the case to the Court of Session, no specific provision is available under Criminal Procedure Code to provide the pendency of sessions case file with the Magistrate after taking cognizance for any other purpose but honourable apex court in case of Muhammad Ramzan v. Rahib and others reported in PLD 2010 SC 585, settled a proposition of law that Magistrate after taking cognizance in cases triable by Sessions Court, must complete the proceedings under sections 87 and 88 and 512 of the Cr.P.C., if according to challan, accused are shown absconder, in said dictum it is held that:-- "Paragraph 20. The phrase "or send for trial to the Court of Session or High Court" appearing in section 512 of the Code clearly demonstrates that Magistrate who is empowered to send the case to the Court of Session has also power to record the evidence in absence of accused after declaring him absconder which can be done as required under sections 87 and 88 of the Code after issuance of warrants of arrest as provided under section 204 of the Code. Thus such Magistrate has power to initiate proceedings under sections 87 and 88 of the Code in a case triable by the Court of Session Paragraph 22. It is not out of place to mention here that originally such power was not given to the Magistrate, when committal proceedings were being conducted.
However, this power was given to the Magistrate after abolishment of committal proceedings. The phrase was added by the Law Reforms Ordinance, 1972 with a view that Sessions Court should not be burdened with these type of proceedings its major portion of time would be consumed in conducting these proceedings, which is being consumed now-adays and further the status of Sessions Court would be reduced to that of court of Magistrate. If the proceedings under sections 87/88 of the Code are completed at the level of the Magistrate before the case is sent up to the court will be in a position to start the trial expeditiously and the time consumed in such proceedings by it can be saved.
' Paragraph 23. In order to comply with the above provisions of law, it is directed that if all the accused are shown absconders in the challan then the case be sent up to the Court of Session after completing the proceedings as provided under section 512 of the Code. After receipt of case, the Sessions Court may pass order for keeping the case on dormant file or pass appropriate order as it deems fit, if some of the accused are absconders and some are present, then before sending the case to the Court of Session the Magistrate should simply complete the proceeding under sections 87 and 88 of the Code within shortest possible time but not later than two months after taking cognizance. The Magistrate should ensure that when a case is sent up to the Court of Session it should be completed in all respect enabling the Court of Session to start the trial immediately".
12. Therefore it is suffice to say that pendency of the sessions case file with the Magistrate was not for any other purpose but it was only meant to complete the process of proceedings under sections 87 and 88, Cr.P.C. Against absconding accused within 60 days, and proceeding of sections 512, Cr.P.C., if required. Jurisdiction was vested in the Magisterial courts to complete the proceedings against absconding accused persons in matters triable by the Court of Session only to lessen the time taking exercise and never meant to vest powers of Sessions Court (trial Court) in the court of Magistrate. Thus I am of the firm view that in the instant matter the Magistrate was not competent to issue release writ and such act is without jurisdiction and coram non-judice, in any case Magisterial court cannot assume jurisdiction of Sessions Court.
13. Keeping in view the circumstances of the case, and dictum laid down by apex court, without any hesitation this is a fit case for interference, consequently impugned Order dated 27-7-2012 is hereby set aside, therefore, the accused are hereby arraigned in this case and they must face the trial.
14. Above are the reasons of a short order dated 7-9-2012 whereby this criminal miscellaneous application was allowed, impugned order dated 27-7-2012 was set aside and the concerned Magistrate was directed to forward the challan after completion of proceedings under sections 87/88, Cr.P.C. Before the court concerned.