QAISER RASHID KHAN, C.J.---Through this single judgment, I propose to decide the present Reference No.01 of 2022, received from the learned Additional Sessions Judge-II, Mohmand and the connected Reference No.02 of 2022, received from the learned Sessions Judge, Charsadda as common questions of law and facts are involved in both the References.
2. Brief but relevant facts of the case are that on 23.11.2019, the complainant Abdullah learnt that his uncle Muhammad Tariq has been abducted at gunpoint by the accused Waqar Ahmad, Farooq Ahmad and Qadir Muhammad at the behest of the co-accused Muhammad Saeed and Muhammad Sareer from the criminal jurisdiction of Police Station Battagram, Tehsil Shabqadar and that is how, they were booked in case FIR No.355 dated 23.11.2019 under sections 365/109, P.P.C. of Police Station Battagram, District Charsadda.
On the same very day i.e. 23.11.2019, the local police of Police Station Yakagund, District Mohmand received a decapitated/headless and handless dead body, which was taken to the Ghalanai Hospital for postmortem, where the complainant Abdullah identified it to be the dead body of his uncle Muhammad Tariq and he pointed an accusing finger at the accused Waqar Ahmad, Farooq Ahmad, Qadir Muhammad to have committed the murder of his uncle after his abduction at the instance of co-accused Muhammad Saeed and Muhammad Sareer. Accordingly, all the accused, named above were booked in another case FIR No.78 dated 23.11.2019 under sections 302 / 201 / 109 / 148 / 149, P.P.C. of Police Station Lower Mohmand (Yakaghund), District Mohmand. The motive for both the occurrences was stated to be previous blood feud between the parties. So far, so good.
3. The Judicial Magistrate-I, ShaNadar took the cognizance of the matter in case FIR No.355 dated 23.11.2019 under sections 365 / 109, P.P.C. of Police Station Shabqadar whereby the abduction of the deceased Tariq was reported and accordingly, the trial has commenced in the case wherein a formal charge against the above named accused was framed on 20.01.2021.
Likewise, the learned Additional Sessions Judge-II, Mohmand also took the cognizance of the matter in case FIR No.78 dated 23.11.2019 under sections 302 / 201 / 109 / 148 / 149, P.P.C. of Police Station Lower Mohmand (Yakaghund), District Mohmand whereby the murder of deceased Tariq was reported and accordingly, the trial has commenced in the case wherein a formal charge against the above named accused was framed on 12.11.2020.
Since the abduction of deceased Tariq took place within the territorial jurisdiction of Shabqadar while his dead body was found in the territorial jurisdiction of the Lower Mohmand (Yakaghund), therefore, the respective courts of both the local areas have separately taken cognizance of the offencer, committed in their respective jurisdictions.
In the meanwhile, the learned Additional Sessions Judge-II, Mohmand / Trial Court has sent Reference No. 1 of 2022 under section 185(1), Cr.P.C. for the determination of one court, where the accused in both the FIRs can be tried while the learned Sessions Judge, Charsadda has sent the matter vide Reference No.2 of 2022 for transfer of the case vide FIR No.355 dated 23.11.2019 under sections 365 / 109, P.P.C. of Police Station Battagram, District Charsadda to the court of the learned Trial Court at District Mohmand, where another case FIR No.78 dated 23.11.2019 under sections. 302 / 201 / 109 / 148 / 149, P.P.C. of Police Station Yakaghund, District Mohmand is pending trial.
4. After receiving both the references, the learned Advocate General was put on notice to properly assist the court on this legal proposition keeping in view the peculiar facts and circumstances of the case.
5. The gist of the arguments of the learned Advocate General is that since the subsequent offence of the murder of the deceased Tariq, committed at Yakaghund, District Mohmand is the continuation of the earlier offence i.e. his abduction, committed at Shabqadar, therefore, kedping in view the convenience of the prosecution witnesses as well as the parties, who hails from District Charsadda, the trial of the accused, pending at District Mohmand is liable to be transmitted to District Charsadda so as to be tried by one and the same court. He placed reliance on the judgments of the superior courts reported as 2020 SCM R 1200, 2017 PCr.LJ (Lahore) 46, PLD 2015 Balochistan 54, PLD 2008 Quetta 101, AIR 1970 Calcutta 81, AIR 1952 Calcutta 563, AIR 1933 Lahore 852 and AIR 1933 Oudh 45.
6. Arguments heard and the available record perused.
7. The moot question before this court in the instant matter is the determination of a trial court as envisaged under section 185(1), Cr.P.C. as to whether it would be the court, in whose jurisdiction, the abduction of Tariq took place or the court, in whose jurisdiction, his murder was committed.
At this stage, it would be worthwhile to reproduce herein below the ibid section of law, which reads as under:-
185. High Court to decide, in case of doubt, district where inquiry or trial shall take place. (1)
Whenever a question arises as to which of two or more Courts subordinate to the same High Court ought to inquire into or try any offence, it shall be decided by that High Court.
8. There is no cavil with the proposition that both, the complainant party and the accused party are the same and the controversy revolves around the deceased Tariq, who was first abducted and later on murdered. In the first part of the offence, he was abducted from Shabqadar while in the later part, he was murdered at Yakaghund. The same obviously means that, both the offences are the outcome of one and the same transaction, which commenced at one district and culminated at another district.
To tackle such like situation, sections 179 and 182, Cr.P.C. provide guidelines in the following terms:-
179. Accused triable in district where act is done or where consequence ensues. When a person is accused of the commission of any offence by reason of anything which had been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the limits of whose jurisdiction any such thing has been done, or any such consequence has ensued.
182. Plate of inquiry or trial where scene of offence is uncertain or not in one district only or where offence is continuing or consists of several acts. When it is uncertain in which or several local areas an offence was committed, or where an offence is committed partly in one local area and partly in another, or where an offence is a continuing one, and continues to be committed in more local areas than, one, or khere it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
9. Keeping in view the explicit language of the ibid sections of law, it is clear that where an offence is committed in parts in two different areas or continues to be committed in more local areas, then, it is the prerogative of either of the courts to take cognizance of the matter having jurisdiction over any of such local areas.
When the instant case is seen in the light of the ibid sections of law, the legislation itself confers concurrent jurisdiction upon both the courts to adjudicate upon the matter in respect of the offences, which were / have been committed in their respective jurisdiction. At the same time, it is also to be seen as to which court is more suitable for both the parties keeping in view their convenience on the touchstone of Rule 3 of Chapter 26 of Vol.III of the High Court Rules and Orders.
10. In the case in hand, both, the accused party and the complainant party as well as the prosecution witnesses hail from District Charsadda, therefore, the court at Shabqadar, who took the cognizance of the matter regarding abduction of the deceased Tariq, in my firm view, is more suitable to also adjudicate upon the matter regarding the murder of the said Tariq. Hence, I hold that case FIR No.78 dated 23.11.2019 under sections 302 / 201 / 109 / 148 / 149, P.P.C. of Police Station Lower Mohmand (Yakaghund), District Mohmand shall be tried by the learned trial court at Shabqadar, where another case FIR No.355 dated 23.11.2019 under sections 365/109, P.P.C. of Police Station Battagram, District Charsadda is pending trial.
I am also mindful of the fact that the learned Judicial Magistrate-I, Shabqadar has no power to take cognizance of the matter regarding the murder, which can only be tried by the court of session. At the same time, in the offence under section 365, P.P.C., the court of sessions has the concurrent jurisdiction to adjudicate upon such offence.
11. Accordingly, while exercising the jurisdiction / power as envisaged under section 526, Cr.P.C., I hereby direct the transfer of both the cases, pending before the learned Additional Sessions Judge-H, Mohmand and the learned Judicial Magistrate-I, Shabqadar to the learned Sessions Judge, Charsadda for onward transmission to the learned Additional Sessions Judge, Shabqadar for their disposal in accordance with law.
Both these References are answered and disposed of in the above terms.