NISAR HUSSAIN KHAN, J.---Petitioner has questioned the order of Judicial Magistrate-II, Nowshera, dated 1-2-2014 and that of learned Additional Sessions Judge-III, Nowshera dated 13-2-2014 whereby his application for alteration of charge was turned down by both the courts.
2. Resume of facts leading to the filing of instant petition are that report was lodged by Abdul Ghaffar complainant in Police Station Risalpur on 11-8-2013 that his son Umair aged 16 years was enticed away by accused Sad= Hussain, Fida Hussain sons of Khadim Hussain and Muhammad Irfan on 9-8-2013, on Friday, first day of Eid at 1500 hours to visit certain places. When his son did not return till late night, he set out for his search and enquired from the said boys as to where his son has been left. On the next day, Muhammad Irfan disclosed that Umair son of the complainant has drowned in the River Indus when he was swimming. He alleged in the report that he is satisfied that his son has not drowned in the River but it was accused Saddam, Fida and Irfan who intentionally have drowned him because two months prior to the occurrence of the incident, an altercation took place between them and the complainant party which was reported in the Police Station. Thereafter continuous threats were received by the complainant from the accused that they would do away with his son Umair and would never spare him alive. So he charged the accused for drowning his son in the river. On this report, FIR No,542 was registered under section 365, P.P.C. On completion of investigation, Challan was submitted in the court of Judicial Magistrate who took cognizance and initiated the trial. When the prosecution evidence and statement of accused were recorded, the complainant filed application for alteration of charge from section 365, P.P.C. To section 364, P.P.C. Which was turned down and the revision filed there-against was also dismissed by the learned Additional Sessions Judge, Nowshera.
3. Learned counsel for petitioner argued that in view of the narrations made in the initial report, section 364, P.P.C. Was the proper section of law which should have been inserted in the FIR.
However, the trial court was also competent to change the charge in terms of section 227, Cr.P.C.
4. Learned counsel for accused/respondent argued that complainant has filed this application at the fag end of the trial when the case was fixed for arguments which shows his mala fide to keep the accused behind the bars as long as he can. He maintained that the alleged incident of drowning has taken place within the jurisdiction of province of Punjab where no report has been lodged. He further argued that the Magistrate has got no authority to transfer the case under section 528, Cr.P.C., hence the impugned orders are unexceptionable.
5. I have heard learned counsel for the parties and have gone through the record carefully with their valuable assistance.
6. Simple narration of the FIR reflects that complainant at the very outset levelled allegation that his son has been intentionally drowned by the accused in the river and thereafter he was not found.
Though in the initial part of the report, there is reference of enticing his son for visit to some place by the accused but the second part is also relevant with the first part of the report. Bare narration of the FIR clearly demonstrates that it would attract penal provision of section 364, P.P.C. And not 365, P.P.C. Because it was not a simple case of abduction for wrongful confinement nor there is allegation of wrongful confinement against the accused. Rather after abduction, it is clearly mentioned that he was drowned in the river. So neither the I.O. Has attended to this aspect of the case nor the Magistrate during investigation and framing charge has considered this aspect.
Rather he simply followed the section of the law which was inserted by the police as per their own whims. The Magistrate is not bound by the opinion of the police but is required to form his own opinion with regard to the offence so made out in the FIR and the evidence so collected. The learned Magistrate while rejecting the complainant's application was swayed with the commission of the crime which has been committed within the jurisdiction of Police Station Attock where no report has been made, While the offence of abduction has been committed in the jurisdiction of this court, so proper charge has been framed and lastly that the evidence of the prosecution is complete while plea of the alteration of charge has not been taken at the earlier stage, so application was turned down.
7. To meet the first opinion of the Magistrate, one will have to first refer to the first report of the complainant wherein he has stated that his son was enticed away from the jurisdiction of Nowshera to Attack Park within the jurisdiction of District Attock. This report clearly demonstrates that the offence initially ensued at Nowshera wherefrom son of the complainant was enticed away and its second part occurred at Attack Park where he was drowned. This whole episode is interconnected with chain of events and cannot be separated nor segregated in different parts for lodging report at different police stations. Section 181(4), Cr.P.C. Clearly deals with identical cases of kidnapping and abduction which stipulates that the offence of kidnapping or abduction may be inquired into or tried by a court within the local limits of whose jurisdiction the person kidnapped or abducted was kidnapped or abducted or was conveyed or concealed or detained. For further clarification, in such like situation, apart from the cases of kidnapping or abduction section 182, Cr.P.C. Postulates that where an offence is continuous one and has been committed in more than one areas or it consists of several acts done in different local areas, it may be enquired into or tried by a court having jurisdiction over any of such local areas. In view of this legal position, the offence so committed could be tried at Nowshera or at Attack. When court at Nowshera has taken cognizance, it could legitimately try the latter offence of drowning at Attock because it related to the some incident which ensued from the abduction of the abductee from Nowshera, hence the learned trial court has fallen in error while rejecting the application on this score.
8. So far as second ground for rejection of application with regard to the delayed application is concerned, section 227, Cr.P.C. Itself provides in explicit and unambiguous terms that the court may alter or add to any charge at any time before pronouncement of the judgment. The section is reproduced herein below for ready reference:- "227. Court may alter charge.-
(1) Any court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused."
9. Bare perusal of the section transpires that charge may be altered or added before pronouncement of the judgment. It explicitly, provides that before pronouncement of, judgment, charge can be altered at any stage. So delayed submission of application for alteration of charge is no ground for refusal of alteration of charge, if the case of alteration is made out.
10. Learned counsel for the respondent objected that the trial Court has got no jurisdiction in terms of section 528, Cr.P.C. To transfer case when after alteration of charge from section 365, P.P.C. To section 364, P.P.C., his jurisdiction shall be ousted because the offence under section 364, P.P.C. Is exclusively triable by the Court of Session. Firstly, at the initial stage, the Magistrate was required to go through the contents of the FIR and should have referred the same in terms of section 190(2), Cr.P.C.. To the Sessions Court for trial. However, when the trial has commenced and the Magistrate finds that the case is triable by the Sessions Court, he in terms of section 347, Cr.P.C. Shall send the case to the court of Sessions Judge. The very language of the section 347, Cr.P.C. Envisages that this power may be exercised before signing of the final judgment. It clearly demonstrates that even at the time of pronouncement of judgment and before signing the same, if the Magistrate comes to the conclusion that the case is triable by the Sessions Court, he shall send the same to the Sessions Court for trial. In the instant case this section can be invoked by the Magistrate for sending the case to the Sessions Court.
11. The learned Additional Sessions Judge while deciding the revision petition has fallen in error by following the opinion of he learned Judicial Magistrate by holding that when the Magistrate has got no jurisdiction to try offence under section 364, P.P.C. Then how can he alter the charge. The learned Judicial Magistrate shall by recording his findings that in view of the facts narrated in the FIR, case of section 364, P.P.C. Has been made out which is triable by the Sessions Court, the case is sent for trial to the Sessions court in terms of section 347, Cr.P.C. There is no need of framing of charge by the Magistrate himself.
12. For the reasons discussed above, this petition is allowed, the impugned order of the Judicial Magistrate as well as that of Additional Sessions Judge are set aside and the case is remitted to the Magistrate to do the needful in the light of observation made herein above. Since case has already consumed considerable time and its trial before the Sessions Court would also take time, learned Sessions Judge is directed to conclude the trial and decide the case within a period of three months positively. Parties shall appear before the Judicial Magistrate on 24-7-2014.