This is a petition under section 561-A, Cr. P. C. For quashment of proceedings in private complaint under sections 6, 11 and 16 of Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 titled Mst. Nasreen Fatima v. Muhammad Saeed and six others pending in the Court of Mr. Muhammad Anwar, Additional Sessions Judge, Sargodha.
2. A private complaint was filed by Mst. Nasreen Fatima, respondent No, 2, under sections 6, 11 and 16 of Offence of Zina (Enforcement of Hudoon, Ordinance, VII of 1979 in the Court of t he learned Sessions Judge, Sargodha which was entrusted to the learned Additional Sessions Judge who forwarded it to the learned Magistrate, Sargodha, for inquiry wider section 202, Cr. P. C. The learned Additional Sessions Judge had recorded statement of the complainant as required by the proviso to section 202 (1), Cr. P. C. The learned Magistrate after holding inquiry sent his repoct and the A complaint to the learned Additional Sessions Judge, Sargodha, who summoned the seven petitioners as accused vide order passed on 10th October, 1982. Petitioners filed application under section 265-K, Cr. P. C. For quashment of proceedings and acquittal of the petitiones which was rejected by the Additional Sessions Judge, Sargodha, on 2nd November, 1982, who held that it had jurisdiction in the matter. Petitioners have challenged both the aforementioned orders, dated 10th October, 1982 and 2nd November, 1982 in this petition.
3. It has been argued that the learned Additional Sessions Judge had no jurisdiction to entertain the private complaint directly in violation of section 193 (1), Cr. P. C. Unless the complaint was sent to it by the Magistrate under section 190 (3), Cr. P. C. And his failure to return the complaint for presentation before a Magistrate has vitiated proceedings before it. Reliance has been placed on Muhammad Aslam v. Natho Bibi and an unreported judgment of this Court in Muhammad Yaqub etc. v. Muhammad Ismail etc. (Cr. M. 211/Q of 1977) decided on 10th January, 1979.
4. The Court of Session has no original jurisdiction to try a criminal case. According to the procedure the private complaint is to be filed with the Magistrate who sends it to the Court to Session under section 190 (3), Cr. P. C. If it finds the same to be exclusively triable by a Court ot Session. Thereafter, the Sessions Judge or for that matter the Additional Sessions Judge may reject the complaint or summon the accused and proceed with the trial.
5. In the case of Kamal Khan v. Muhammad Naeem and 4 others on a private complaint filed directly the Court of Session forwarded it to the First Class Magistrate, Quetta, for inquiry and report.
The Magistrate after scrutiny of the complaint and examining the witnesses produced before him by the complainant recorded his satisfaction that the case disclosed commission of offences triable by the Court of Session. The complaint was.Then sent to the Sessions Judge who issued process against the accused. The case was subsequently transferred to the Additional Sessions Judge who commenced the trial. It was held that the Sessions Judge could have returned the complaint to the complainant for presentation before the Magistrate who again would have sent it to the same Sessions Court and by mere recording of statements by Magistrate under section 200, Cr. P. C. No prejudice had been caused and the proceedings in the case had not been vitiated. It was also held that the proceedings, order of Sessions Court directing the Magistrate to hold an inquiry under section 202, Cr. P. C. Was in accordance with law. The revision was accepted and the case was remanded to the Additional Sessions Judge for order on merits.
6. In the case of Muhammad Ramzan v. The State and another a private complaint was filed by Mst. Hasso, mother of the ravished girl, in the Court of Session directly under section 6 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. It was referred to a Magistrate under section 202, Cr. P. C. For preliminary inquiry and in view of the evidence led before him and the report submitted by the Inquiry Magistrate the learned Sessions Judge, Faisalabad, summoned the petitioners as accused. The application of petitioner under section 265-K, Cr. P. C. For acquittal was dismissed by the Additional Sessions Judge. Petitioner then filed application under section 561-A/439, Cr. P. C. For quashment of aforesaid order of the Additional Sessions Judge which was dismissed by the High Court in limine. The petitioner did not specifically address the Court on the procedure adopted in that case and leave was refused to him because the Court found that in view of the allegations levelled against petitioners and preliminary evidence led in support thereof before the Inquiry Magistrate during inquiry proceedings under section 202, Cr. P. C. The High Court was justified in rejecting petitioner's quashment application.
7. Under the law as it stands at present the private complaint should have been returned by the learned Sessions Judge and the complainant should have presented it to the learned Magistrate concerned who after taking cognizance under section 190 (1), Cr. P. C. Should have sent it to the learned Sessions Judge for trial. According to the procedure all complaints have to be filed before the Magistrate who takes cognizance under section 190 (I), Cr. P. C. After amendment the commitment proceedings were eliminated. The present position is that this cognizance by the learned Magistrate is taken for the purpose of ascertaining the jurisdiction and when it finds that the offence alleged ip the private complaint is exclusively triable by Sessions Judge the learned Magistrate is always to send the case under section 190 (3), Cr. P. C. This the learned Magistrate does without holding any proceedings. The Court of Session has no original criminal jurisdiction and can hold a trial only when a case is forwarded to it under section 190 (3), Cr. P. C. The complaint in this case was instituted on 9th September, 1982 in the Court of Sessions Judge Sargodha. It was entrusted to the Additional Sessions Judge who after getting a report of inquiry under section 202, Cr. P. C. From the Magistrate summoned petitioners as accused. Although the procedure adopted by the learned Additional Sessions Judge was not proper but petitioners did1 2 3 not challenge the same in their application under section 265-K, Cr. P. C. If the proper procedure had been followed the result would have been the same. The proceedings of inquiry under section 202 Cr. P. C. And report made by the Magistrate were in conformity with law and provided material for summoning the accused. The procedure was not proper but it did not prejudice the accused and does not vitiate the trial of petitioners in the circumstances of present case.
8. On behalf of petitioners half-hearted arguments were addressed on the territorial jurisdiction of the Additional Sessions Judge. It was submitted that the offence of abduction having been committed at Khushab which had been created into an independent District, there was no territorial jurisdiction vested in the Additional Sessions Judge, Sargodha, to hear the case. This objection was not pressed at the time of hearing of the arguments. Otherwise also after abduction of Mst. Nasreen Fatima by respondent No, 2 from the house of her parents in Khushab, Zina was allegedly committed with her at Khushab, again at Sargodha and she was deprived of money on way to Lahore and at Lahore she was coerced to make statement favourable to the petitioners.
Section 181, Cr. P. C. Provides that where scene of occurrence is not in one District and offence consists of several acts which offences are committed partly in one local area and partly in another, it may be tried by a Court having jurisdiction over any of such local areas.
9. Arguments were also addressed on merits of the case. The complainant has alleged abduction, rape, extortion etc. Which relate to the decision on detail examination of the evidence in the case. It cannot be short circuited by invoking inherent jurisdiction of this Court under section 561-A, Cr. P. C.
Prima facie case is made out against the petitioners.
20. The quashment of proceedings was prayed for because orders, dated 10th October, 1982 and 2nd November, 1982, were illegal according to the petitioners. I have found above that both the orders were in accordance with law. On merits the case requires detailed examination In the circumstances of the present case I do not consider it fit to quash the proceedings before the Additional Sessions Judge, Sargodha.
For the foregoing reasons this petition is dismissed. PLD 1977 Lab. 535 PLD 1979 Quetta 69 NLR 1983 SC J 41