ASJAD JAVAID GHURAL, J.---Through this petition under Section 561-A of the Code of Criminal Procedure 1898, petitioner Sajid Pervaiz has challenged the vires of order dated 21.10.2016 passed by the learned Sessions Judge, Multan whereby criminal revision petition filed by the present petitioner against order dated 13.07.2016 passed by the learned Judicial Magistrate forming its opinion with regard to the non-constituent of offence under Section 302, P.P.C. against respondents Nos.2 to 5 towards the death of Muhammad Ali deceased in case FIR No.93 dated 30.03.2011, in respect of offences under sections 337-L(1)/ 427/34, P.P.C., registered with Police Station Alpa District Multan.
2. Precisely, facts necessary for disposal of the instant petition are that the petitioner got lodged the aforementioned case against respondents Nos.2 to 5 with the allegation that they caused injury on the abdomen of Muhammad Ali, the father of the complainant on 12.03.2011 with a piece of wood, who was admitted to hospital and expired on 25.04.2011 after having undergone two medical operations.
3. The police prepared report under Section 173, Cr.P.C. against respondents Nos.2 to 5 in respect of offence under Section 337-L(1), P.P.C. On failure from the Court of learned Area Magistrate, the petitioner approached this Court for the correction of offences wherein vide order dated 25.03.2013, the learned Area Magistrate was directed to record the deposition of the medical expert including cross-examination by the defence and then form an independent opinion as to what offence was constituted. Learned Area Magistrate recorded deposition of the medical expert and rejected the aforementioned claim of the petitioner. Having exhausted the remedy of criminal revision, the petitioner again approached this Court, wherein vide order dated 10.09.2014, learned Area Magistrate was directed to record the statements of material witnesses as well as the doctor and then form its opinion to constitute the relevant offence. Learned Area Magistrate directed the petitioner to provide name of the medical expert vide order dated 20.11.2014, which was assailed by respondent No.3 through revision petition before the learned Additional Sessions Judge. who accepted the same vide order dated 12.02.2015. The petitioner again approached this Court assailing the said order, which was dismissed vide order dated 22.09.2015 advising the petitioner to move an application under Section 540, Cr.P.C. whereupon he moved said application before the learned Area Magistrate, who dismissed the same vide order dated 12.11.2015 and even revision petition filed against the said order also met the same fate vide order dated 09.01.2016. The petitioner once again approached this Court assailing both the said orders, which was dismissed vide order dated 14.05.2016. Thereafter, learned Area Magistrate formed its opinion in compliance of order of this Court dated 10.09.2014 vide order dated 13.07.2016 observing that offence under section 302, P.P.C. did not constitute from the evidence produced by the prosecution and fixed the case for recording statements of the accused under section 342, Cr.P.C. The petitioner assailed the said opinion before the learned Additional Sessions Judge, which was dismissed vide order dated 21.10.2016. The petitioner has impugned herein both the aforementioned orders.
4. Learned counsel for the petitioner submits that the medical expert i.e. Dr. Asif Jameel Ansari, APMO, in his deposition recorded as CW-1, deposed that the cause of death was the result of history of trauma to abdomen, which was caused by respondents Nos.2 to 5 in furtherance of their common intention: that at least provisions of section 316, P.P.C. does attract; that at the conclusion of trial, even if the provisions of section 316, P.P.C. are found not attracted, the trial Court will be able to impose the penalty of lesser offence and it would not be possible for the trial Court to impose the penalty for an offence entailing excessive punishment. In support of his contention, learned counsel has placed reliance on cases titled "Arshad Masih v. The State (2012 PCr.LJ 1674 [Balochistan])", "Muhammad Ashraf v. The State (PLD 2008 Lahore 578)", "Abdul Hakeem v. The State (2005 PCr.LJ 182 [Federal Shariat Court)", "Azmat Ullah Khan v. The State (1993 PCr.LJ 1220 [Lahore])", "Khuda Bakhsh and another v. The State (PLD 1994 Lahore-442)" and "Syed Tajammal v.
Nasar Mehdi and another (PLD 1976 Supreme Court 377)".
5. On the other hand, learned counsel for respondents Nos.2 to 5 has vehemently opposed this petition with the contention that after recording the deposition of material witnesses as well as medical expert, learned Area Magistrate has rightly come to the conclusion that offence under section 302, P.P.C. was not constituted. However, learned DDPP has gracefully conceded that from the deposition of medical expert, provisions of Section 302 attract in this case.
6. I have heard learned counsel for the parties, learned DDPP for the State and have perused the record.
7. This Court is to decide the question as to whether from the facts and circumstances available on record, prima facie offence of Qatl-i- Amd is constituted or not and also to consider whether both the Courts below had rightly evaluated the above-mentioned proposition. For considering these questions section 300, P.P.C. is very important to be reproduced here:-- "Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-i-amd."
8. In the case in hand, I have given my anguish consideration that the complainant got registered the aforesaid case on 29.03.2011 through the Court's order dated 28.03.2011, as mentioned in the FIR, with the allegation that on 12.03.2011 at 2:00 p.m., his father Muhammad Ali was cutting fodder in his field when accused persons nominated in the FIR assaulted upon him; Abdul Jabbar (respondent No.2) gave a PHATTA blow at the abdomen of said Muhammad ALL who was taken to hospital with a complaint of pain at abdomen; they also maltreated the complainant. The case was registered under Sections 337-L(2)/427/34, P.P.C. Injured Muhammad Ali expired thereafter on 25.04.2011 in the hospital having undertaken medical operations of his abdomen. Since then, the petitioner is languishing at different forums to add offences under sections 302 and 34, P.P.C. in the aforementioned case regarding murder of his father.
9. On receiving direction of this Court vide order dated 22.09.2015, learned Area Magistrate recorded statements of the prosecution witnesses including the medical experts. Muhammad Ali deceased was taken to hospital on 13.03.2011 with the history of blunt trauma to abdomen at the time of examination. After the expiry of Muhammad Ali deceased in the hospital, Dr. Muhammad Zafar Abbas (CW-1) conducted his post mortem examination on 26.04.2011 and gave following opinion:-- "Keeping in view of all the above-mentioned reports/record/findings of post mortem reports, I am of the opinion that the cause of death was disease process (cardiac disease) which was aggravated by extensive surgery as a result of history of trauma to abdomen."
10.Learned Area Magistrate was directed by this Court twice to formulate its opinion after recording the statements of medical expert and the eye-witnesses for the constituent of the relevant offence and by no stretch of imagination, to himself take cognizance of the matter. The Area Magistrate should have gathered its opinion from the documents available on record i.e. crime report/FIR, statements of the witnesses recorded under section 161, Cr.P.C., post mortem report coupled with the statement of the Dr. Asif Jamil Ansari (PW-3) and from the statements of the witnesses recorded by him. It has been observed from the documents available on record that the petitioner had specifically levelled the allegation of causing abdominal injury to deceased Muhammad All against respondents Nos.2 to 5, the medical evidence prima facie supports version of the petitioner wherein it has been observed that cause of death was disease process, which was aggravated by extensive surgery as a result of history of trauma to abdomen, the said injury was allegedly caused by respondents Nos.2 to 5, therefore, it is evident from the material available on record that an offence of homicide was, committed. In such circumstances, having gone through the aforesaid material available on record, learned Area Magistrate was bound under section 190, Cr.P.C. to transmit the case file to the Court of Session for trial instead of itself taking cognizance of the matter.
11. There is no quibble to the proposition that deceased Muhammad Ali had expired due to the disease process, which was aggravated by extensive surgery, as a result of history of trauma to abdomen. The word 'trauma', as defined in the Black's law dictionary, means:-- "A physical injury caused by a blow, or fall, or a psychologically damaging emotional experience.
An injury, wound, shock, or the resulting condition or neurosis."
I have no iota of doubt in my mind that the cause of death was due to extensive operations as a result of abdominal injury. Having gone through all the relevant documents including the final opinion qua the cause of death of the deceased as narrated above, prima facie, offence of Qatl was constituted. However, I intentionally constrain myself to give any opinion as to which of the offences as defined under sections 300. 315, 318 or 321. P.P.C. constitute in the case in hand being exclusive prerogative of the trial Court having seized of the matter, to declare the same after recording the evidence.
12. It was the duty of the Court to determine which kind of aforesaid Qatals, if any, is constituted but both the Courts below have committed grave error of law and facts by not appreciating the peculiar facts and circumstances of the case in hand and transgressed their jurisdiction unwarranted by law. Question arises from where the Court has to make its opinion about the constituent element of the offence that which offence is made out. In my considered view, no doubt there are different stages to frame opinion in this respect but in the case in hand, when the statements of prosecution witnesses have been recorded by the learned Area Magistrate after framing of charge against respondents Nos.2 to 5 in respect of offences under sections 337-L(2), 427 & 34, P.P.C. entailing lessor punishment, the provisions of section 347, Cr.P.C. will come into play.
The opinion of learned Area Magistrate vide impugned order dated 13.07.2016 observing that the offence of murder did not constitute from the evidence on record and opted the jurisdiction of the case in hand as a trial Court, is totally illegal and against the norms of natural justice, which is not tenable. The same is the fate of impugned order dated 21.10.2016 passed by the learned Additional Sessions Judge, Multan maintaining the aforesaid order of learned Area Magistrate. Both the learned Courts below have failed to IF properly appreciate the legal as well as factual controversy in hand.
13. For what has been discussed above, the petition in hand is allowed, impugned orders dated 13.09.2014 and 21.10.2014 are hereby set aside. Learned Judicial Magistrate, after binding all the concerned, shall transmit the case file to the learned District and Sessions Judge, Multan under Section 347, Cr.P.C., who shall proceed with the matter strictly in accordance with law. Since the matter in hand is old one, therefore, the Court finally seizing of the matter, shall conclude the trial expeditiously and preferably within a period of four months from the date of receiving the case file.