RUSTAM S. SIDHWA, J.--This is an appeal under section 417, Cr. P. C. By the State against the judgment dated 18th May, 1976 of Mr. M. Akram Khalid, Magistrate Section 30, Okara acquitting the present respondent.
2. On 5th January, 1976 one Dilshad Ali lodged an F. I. R. At Police Station, Gogara, inter alia alleging that Mukhtar respondent had struck Farhad Ali with a wooden rod on the head, as a result of which he fell on the ground and was removed to the Civil Hospital, Okara. The police originally registered a case against the respondent under section 307/ 325, P. P. C. But on the death of Farhad Ali changed it to section 302, P. P. C. In the report under section 173, Cr. P. C. The Investigating Officer formally maintained that the offence fell under section 302, P. P. C. The challan, as such, was submitted for an offence punishable with death which was exclusively triable by a Court of Session.
However, the Magistrate tried the respondent for an offence under section 304, P. P. C. And acquitted him.
3. The learned counsel for the State has submitted that the Magistrate who tried the case had no power to assume jurisdiction and he should have transmitted the case under section 190 (3) Cr. P.
C. To, the Sessions Court for trial. Having illegally assumed jurisdiction, it is submitted that the judgment of the learned Magistrate dated 18th May, 1976 is not only illegal but void.
4. Learned counsel for the respondent has submitted that in column No. 7, of the police report under section 173, Cr. P. C. The word (UNDER SECTION 304.) appeared and that, therefore, the Magistrate, validly assumed jurisdiction. He has further submitted that since all the eyewitnesses in the case did not support the prosecution case against the respondent, it would be an exercise in futility to remand the case for retrial to the Court of Session. He also submitted that since no objection was taken by the State earlier when the trial commenced, no prejudice has been caused within the meaning of section 537, Cr. P. C. And that the judgment should not be reversed or set aside.
5. We have given our anxious consideration to this case. In the first instance, the police report under section 173, Cr. P. C. Was submitted in respect of an offence under section 302, P. P. C. This is clear from the body of the writing which appears under column No. 7 of the police report. It appears that the words ---UNDER SECTION 304--- which are entered at the top of the column, appear to be the result of an interpolation, as they do not appear in the proper space provided under Column No. 7 where they should actually be. In any case, since the police report was submitted in respect of a case under section 302, P. P. C. The Magistrate could only have transmitted the case under section 190 (3), Cr. P. C. To the Sessions Court for trial. The trial of the instant case by him was, therefore, illegal. Since the trial proceedings conducted by the learned Magistrate are void, therefore, the question whether the witnesses who appeared did not support the prosecution case and, that if a fresh trial is held, the same would be an exercise in futility, cannot be gone into. The further objection that as the State had not objected to the wrongful assumption of jurisdic--tion by the Magistrate, the judgment cannot be reversed under section 537, C. P. C. Is of no avail for the said section only protects judgments passed by Courts of competent jurisdiction.
6. For the foregoing reasons, the appeal is accepted and the judgment of Mr. M. Akram Khalid, Magistrate Section 30, Okara, dated 18th May, 1976 is set aside. The respondent will be retried by the Sessions Judge, Sahiwal, who is directed to commence the trial by or before the first week of March, 1979. The respondent will remain on bail already allowed to him by this Court till the pendency of his trial by the learned Sessions Judge, Sahiwal.