' SHAKEEL AHMED BALOCH, J.---This petition under Section 561-A of Cr.P.C. Is directed against the order dated 12th August, 2015 (hereinafter referred as, "the impugned order") passed by the learned Judicial Magistrate, Duki, whereby the case file was forwarded to the Court of District and Sessions Judge, Loralai for pronouncement of judgment.
2. The relevant facts of the case are that on 8th July 2014 at 2:30 p.m. The complainant Karim Nawaz registered FIR No,49/2014 at Police Station Duki under Sections 420, 409, 418, P.P.C., stating therein that he is working as Head Munshi with Akbar Tareen Coal Company, where the accused/petitioner is also working as Munshi, who deals with cash and cheques. Two days ago the owner of the company told the petitioner on phone that he is not satisfied with his work and have lost trust upon him, therefore, he will be terminated from his job within two days. On 2nd July 2014 at 11:00 a.m. Accused/petitioner received cash amounting to Rs,1,774,750/- from different banks through nine cheques: Accused/petitioner has illegally grabbed the aforesaid amount but informed the company, that the said amount has been snatched from him by thieves. Since the accused/petitioner has committed fraud, therefore, a case may be registered against him.
3. In pursuance of the above FIR, the investigation commenced. Challan was submitted before the Court of Judicial Magistrate, Duki, who framed the charge. At the trial, the prosecution produced nine (9) witnesses, whereafter the accused/petitioner was examined under Section 342, Cr.P:C. He also recorded his statement on oath under Section 340(2) Cr.P.C, and produced two defence witnesses i,e, Naseebullah DW-1 and Zafarullah DW-2 in his defence. Hence, the arguments were heard and the case was fixed for pronouncement of judgment, but in the meanwhile the trial Court vide impugned order dated 12th August 2015 has come to the conclusion that case of misappropriation is proved against the accused/petitioner and punishment of misappropriation may extend to 10 years, therefore, the case file was forwarded to the District and Sessions Judge, Loralai for announcement of judgment.
4. Learned counsel for the petitioner contended that the impugned order is contrary to settled principles of law as Section 190(1), Cr.P.C. Provides that a Magistrate taking cognizance of the offence triable exclusive by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial; that the findings so given in the impugned order are seriously prejudicing the case of the petitioner, because in clear-cut terms the Magistrate has mentioned that the case is proved against the petitioner and thus the same is being sent to Sessions Judge for awarding sentence, which it highly uncalled for. Learned counsel for petitioner has placed reliance upon the cases of Ghulam Hussain v. State, 1985 PCr.LJ 2334, Zulfiaar Ali v. State, PLD 1992 Lahore 211.
5. Learned State Counsel strongly opposed the contention of the learned counsel for the petitioner and stated that the impugned has been passed after proper appraisal of material available on record.
6. Heard the learned counsel and perused the available record. The admitted feature of the case is that both the Magistrate and Sessions Judge have concurrent jurisdiction to try the offence under Section 409, P.P.C. Legally, if two Courts having co-extensive or concurrent jurisdiction, then under such circumstances propriety demands that jurisdiction of Court of the lower grade was to be invoked in the first instance (PLD 2016 (Supreme Court) 55), hence initially the Magistrate has rightly took the cognizance of the matter and having concurrent jurisdiction the trial Court commenced with the trial of the case. However, after concluding the trial, the learned trial Court instead of pronouncing the judgment has delivered the following order: "The above title case file was fixed for announcement of judgment. 1 have gone to the file with due care and caution. After perusal of record this Court came to the conclusion the case of misappropriation of property is proved against the accused persons namely Muhabatullah beyond any reasonable doubt. The punishment/sentence of mis-appropriation of property under section 409, P. P.C. May extend to 10 years and this court this is groundless(sic), to grant any laser [lesser] punishment/ sentence to accused. Therefore, the case file be forwarded to the court of honourable District and Sessions Judge Loralai for announcement of judgment. Further after transfer of case for judgment, there is apprehension of abscondance of accused person.
Therefore, he be taken into custody and be produced before the court of honorable District and Session Judge Loralai on 18.08.2015. The parties may produce their counsel for further arguments before the court of honourable District and Session Judge, Loralai on above mentioned date,"
7. Perusal of impugned order indicates that according to the learned Magistrate the case is proved against the petitioner and even the wordings used in the impugned order is suggestive of the fact that the learned Magistrate has not only advised the Sessions Judge for awarding sentence to the petitioner, but also according to him the petitioner is entitled for greater punishment and thus while passing such findings the trial court has committed serious illegality. The Magistrate cannot propose to the Session's Judge for awarding sentence to an accused or even he also cannot propose the quantum of sentence, rather after sending the file to the Sessions Judge, it would be the legal authority of the Sessions Judge, who after perusing the case file or recording any evidence shall form his own opinion with regard to guilt or innocence of the accused. The Magistrate ought to have used the words in the impugned order that according to his opinion the case seems to be proved and the accused deserves greater punishment. Thus, the findings of the trial Court to such extent are expunged.
8. So far as the powers of the Magistrate for sending the case to the Sessions Judge for trial is concerned, suffice to observe here that the Magistrate taking cognizance under subsection (1) of Section 190 of the Criminal Procedure Code if initially forms a view that he should himself try the case and commenced with the recording evidence, but at subsequent stage even after recording evidence forms an opinion that the case should or ought to be tried by a Court of Session, he has powers under Sections 347, Cr.P.C. And send the case for trial to the Court of Session. For facilitation Section 347, Cr.P.C. Is reproduced herein below: "Procedure when, after commencement of trial, Magistrate finds case should be tried by Court of Session or High Court. If in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, he shall send the case to the Court of Session or High Court.
9. The above cited provision of law counters the contention of the learned counsel for petitioner, whereby it was asserted that after recording evidence the Magistrate cannot send the case to. The Court of Session rather in specific manner the provisions of Section 347, Cr.P.C. Empowers the Magistrate that even during trial of the case at any stage prior to pronouncement of judgment if he forms opinion that the case is one which ought to be tried by the Court of Session or High Court, he shall transmit the case to the Court of Session or High Court, for trial and even in a case in which the Magistrate has concurrent jurisdiction to hold a trial, he is competent to send the same to Court of Session. Reliance in this regard can also be placed even on the case quoted by the learned counsel for the petitioner on the case of Ghulam Hussain, v. State 1985 PCr.LJ 2334. The relevant portion is reproduced herein below: "...If in a particular case, Magistrate taking cognizance under subsection (1) of section 190 of the Code initially forms a view that he should himself try the case and starts recording evidence but at a later stage forms an opinion that the case should or ought to be tried by a Court of Session, he will be able to proceed and act under sections 346 and 347 of the Code and send the case for trial to the Court of Session. 1 am not prepared to accept the argument that once the Magistrate has commenced the trial by recording evidence he would be barred/precluded from sending the case to the Court of Session for trial. The Legislature has contemplated that the Magistrate should not only send the cases for trial which are exclusively triable by the Court of Session or High Court but also other cases in the opinion of the Magistrate should not ought to be tried by such Court.
The word "should" in section 346 and the word "ought" in section 347 are significant. These two sections were re framed and substituted by Law Reforms Ordinance, 1972. These words clearly refer to cases where it is the Magistrate who decides if the case is fit to be sent up for trial or not.
In other words, these sections show that even in a case in which the Magistrate has concurrent jurisdiction to hold a trial, he is competent to send the same to Court of Session."
10. In view of the above discussion, I am of the view that any case under the Pakistan Penal Code can be sent for trial by a Magistrate under subsection (3) of Section 190 of the Code without recording any evidence and also under sections 346 and 347 of the Code if he had recorded evidence in a particular case, but prior to signing or pronouncing the judgment.
' For the above reasons, the petition is dismissed. The Sessions Judge Loralai is directed to decide the case in accordance with law after forming his own opinion keeping in view the facts and circumstances of the case. The petitioner shall remain on bail during the trial.