' SYED MUHAMMAD FAROOQ SHAH, J.---Impugned is the order dated 21-6-2013 passed by the learned Civil Judge/Judicial Magistrate VIIth Karachi (West) whereby the charge sheet submitted under section 173, Cr.P.C. By Saeedabad Police, in a cognizable offence viz. Crime No, 159 of 2013, under section 302/34, P.P.C. Has not been accepted and the F.I.R. Was disposed of in 'C' class. Being aggrieved and dis-satisfied with the impugned order, the complainant preferred Criminal Miscellaneous Application No, 113 of 2013, which was also dismissed being not maintainable, hence the captioned Criminal Misc. Application is directed against the said orders.
2. The perusal of record transpires that in respect of the same offence cognizance was taken earlier in F.I.R. No, 27 of 2013, registered under section 302/34, P.P.C., in Crime No, 27 of 2013, submitted by the concerned police. The subsequent charge sheet in F.I.R. No, 159/2013 under section 302/34, P.P.C. Was not accepted by discussing the merits/demerits of the evidence of prosecution witnesses by the learned Magistrate, which order was assailed before the Sessions Court and the learned 2nd Additional Sessions Judge, Karachi while placing reliance on judgment of this Court in the case of Sufi Abdul Qadir v. The State and others (2000 PCr.LJ 520), dismissed the Criminal Miscellaneous Application No, 113/2013 being not maintainable in law. In the said rulling, this Court held that since the Magistrate while concurring with a police report submitted under section 173, Cr.P.C., does not act as a Criminal Court inferior to the Court of Session and the High Court, his order cannot be revised or modified under the provision of sections 435, 439, Cr.P.C. But in that case it is amenable to the inherent jurisdiction of the High Court under section 561-A, Cr.P.C., provided the order amounts to abuse of process of Court. It was further observed in cited rulling that since this Court is vested with the authority under section 561-A, Cr.P.C., inclined to exercise the said powers in order to secure the ends of justice, as noninterference with the impugned orders would amount to perpetuate, which has caused grave miscarriage of justice and prejudice to the interest of petitioners. In support of his contention, learned Counsel placed his reliance on following citations:-- Ali Jan v. The State (2011 YLR 2216)
' Badar Maqbool v. The State (2008 MLD 1676)
' Farooq Sumar and others v. The State and others (2004 PCr.LJ 1023) Hussain Ahmed v. Mst. Irshad Bibi (1997 SCMR 1503)
' Sardar Muhammad v. Zaffar Javaid Awan (PLJ 1996 Lahore 680)
' Mst. Erum and others v. Muhammad Adnan (2010.YLR 271) Sofi Abdul Qadir v. The State and others (2000 PCr.LJ 520) 3 ' Arguments heard. Record perused.
4. Relevant facts as narrated in the F.I.R. No, 159/2013 under section 302/34, P.P.C. Are that one Ibrahim Khan in" his statement under section 154, Cr.P.C. Stated that Mst. Husn Ara, his younger sister, whose Nikah was performed on 15-1-2012 with Abid Ali, disappeared on the day of her Rukhsati along with 15 Tolas of gold and cash amounting to Rs, 16,00,000. It is alleged that after obtaining phone record, he came to know that his said sister was kidnapped by one Farooq and his brothers and brought her to 'Machhar Colony', Karachi, the complainant thereafter informed his father at Saudia Arbia on phone. It is alleged that his sister Husn Ara disclosed her family members on phone about maltreatment and torture at the hands of accused persons. The said Farooq and his brothers were extending threats to complainant on phone that they will kill her sister. It is further averred by the complainant that on 30-3-2013, he saw slide on TV that his sister Husn Ara has been murdered on 30-1-2013 at Machhar Colony, Karachi. The complainant came to know that his sister was pregnant at the time of her death and further came to know that said Farooq performed Nikah after torturing her and usurped fifteen tolas gold and cash amount of Rs,16,00,000 and to conceal the murder of Husn Ara, the said Farooq caused self-inflected to himself injury and also got registered a false F.I.R. The complainant requested the concerned police to register the F.I.R. Against the Farooq and his brothers for abducting his deceased sister, performing illegal nikah and usurping gold ornaments and cash on gun point. On conclusion of usual investigation, the police has charge sheeted the accused, which was disposed of in 'C' class, hence the captioned application under section 561-A, Cr.P.C. Has been filed.
5. Learned counsel for the applicant submitted that according to the amendment in section 190, Cr.P.C. Vide Ordinance XXXVIII 2001, Sessions Court has got exclusive jurisdiction to try the case and the job of Magistrate is to send the case for trial to the Sessions Judge, without discussing the evidence available on the record. It is next contended that the order passed by the learned Magistrate amounts to abuse the process of Court, therefore, this Court has the power under section 561-A, Cr.P.C. To rectify the injustice, particularly, the Magistrate had no power whatsoever to hold a trial in a murder case for the purpose of deciding the question of innocence or guilt of the accused, which was .Exclusive domain of Sessions Court and the impugned order passed by the Magistrate on report submitted by the Investigating Officer under section 173, Cr.P.C. And exercise undertaken by him by way of examining the evidence of complainant and his witnesses and then passing another order are without lawful authority and proceedings are liable to be quashed.
Learned counsel submitted that the Magistrate may examine the material placed before him, who is not required to explain each and every aspect of the case and give its reasons for acceptance and rejection of a case exclusively triable by the Court of Sessions.
6. On the other hand, learned Assistant Prosecutor General assisted by Mr. Ali Gohar Masroof, advocate for the accused, submitted that since in respect of same offence another F.I.R. No, 271/2013 under section 302/34, P.P.C. Has also been registered in which cognizance has already been taken and case was registered against the accused persons nominated in the F.I.R., therefore, the F.I.R. In the instant petition, is counter blast just to save the skin by the complainant party, has been lodged on various pretext, which is not tenable in law.
7. For guidance of subordinate judicial officers, the order dated 11-3-2013 passed in (Syeda.Afshan v. Syed Farukh Ali) PLD 2013 Sindh 423 by DB of this Court was circulated. It shall be advantageous to reproduce para-5 of the said order as under:-- "There is no procedural law in our country in which a Magistrate can grant administrative approval for disposal of a case under "A", "B" or "C" class, but the Magistrate has disposed of the case under "C" class by passing impugned order, therefore, it is to be clarified that these classes are in practice to dispose of the criminal cases after completion of investigation since long, this continuous practice has become usage and is not in consistent with or in derogation of fundamental rights as prescribed by Article 8 of the Constitution, therefore, such usage has force of law and now such practice is a part and parcel of the procedural law. Aetually these classes were prescribed by Bombay Presidency Police Guide. According to Bombay Presidency Police Guide, report of investigation under section 173 of the Code of Criminal Procedure, 1898, is to be filed either in the form of a charge-sheet, if the accused is sent for trial, or in the form of a Final Report, in other cases. Final Reports are classified into 'A' true class, 'B'-maliciously false cases, 'C'- ---neither true nor maliciously false cases but non-cognizable".
8. There is no cavil with the proposition that the Magistrate cannot record the evidence in Sessions case but that doesn't mean that he has to automatically send the case for trial to the Court of Sessions, simply because a section relating to an offence exclusively triable by Court of Sessions has been mentioned by the police in challan. He is in fact required on having taken cognizance of such a matter, placed before him by the police send it to the Sessions Court in order to determine whether the allegations made in the police report make out a prima facie case. In the changed circumstances and in view of amendment under section 190, Cr.P.C., the Magistrate cannot determine the nature of offence as to whether or not the case is one triable exclusively by the Court of Sessions, the Magistrate was not competent to dispose of a Sessions case, while cancelling the F.I.R. Or police report, had virtually acted without jurisdiction. The learned Magistrate may draw the inference and conclusion and then transmit the same to the Sessions Court as it was for that competent Court to decide whether cognizance is to be taken or otherwise, and made an administrative determination, without going in further detail as to the merits and demerits of the case. Suffice is to say that the offence under sections 302/34 P.P.C. Is exclusively triable by the Court of Sessions, therefore, after receiving the report under section 173, Cr.P.C., the learned Magistrate was required to forward the same to the Sessions Court without recording or discussing any evidence, as provided under section 190, Cr.P.C.
9. For the foregoing reasons, the impugned order passed by the learned Judicial Magistrate being croam non judice to the extent of canceling the F.I.R. In 'C' class is set aside. With these conclusions, the learned Magistrate is directed to forward the report submitted by the Investigating Officer under section 173, Cr.P.C. To the Court of Sessions for its disposal/trial.
' The instant Criminal Miscellaneous Application is disposed of in the manner indicated above.