' This is a petition under section 561-A, Cr. P. C. Filed by Abdul Waheed, petitioner, for the quashment of proceeding pending against him in the Court of Mr. Azad Muhammad Awan, Additional Sessions Judge, Gujranwala, in a complaint case titled `Amanullah v. Muhammad Saeed Bhatti and others'.
2. The brief facts of the case are that in respect of an occurrence that took place on 14-11-1983, a case under section 307/326/324/148/ 149, P. P. C. Was registered at Police Station Baghbanpura, Gujranwala, against Abdul Waheed, petitioner, and seven others, by Amanullah, complainant- respondent No,
1. Out of the three persons injured Muhammad Luqman died on 2-3-1984, whereupon section 302, P. P. C. Was also added to the case.
3. During the course of investigation, Abdul Waheed petitioner, was found innocent by the police and he got discharged from the Court of the Ilaqa Magistrate on 29-1-1984. Being aggrieved by the discharge of petitioner, Amanullah, complainant-respondent, on 26-9.1984 filed a private complaint against the petitioner and seven others under section 302/307/324/148/149, P. P. C.
Directly in the Court of the learned Sessions Judge. Gujranwala. The learned Sessions Judge transferred the said private complaint to the Ilaqa Magistrate, with the following order :- "Presented by......,.....Transferred to Ilaqa Magistrate to appear there on 29-9-1984.
(Sd.)
District and Sessions Judge, Dated : 26-9-1.984 Gujranwala."
' The Ilaqa Magistrate conducted inquiry proceedings under section 202, Cr. P. C. And submitted his final report dated 6-3-1985 to the Sessions, holding that a pi ima facie case stood made out against the petitioner and others. Since by that date the challan had not been submitted by the police; the learned Sessions Judge ordered the said challan to be put up before him. The case was adjourned on a number of dates to await the challan from the police. Eventually, the challan case was received and both the State case and the complaint case were entrusted to a learned Additional Sessions Judge on 15-6-1985. On receipt of these cases, the learned Additional Sessions Judge the same day (1. e. 15-6-1985) summoned the petitioner and the other several co-accused to face their trial in respect of offences under section 302/307/325/324/148/149, P. P. C. Being aggrieved by the said order, Abdul Waheed, petitioner, filed a petition for quashment (Cr. M. 189/Q of 1985) in the High Court, which was dismissed in limine on 14-9-1985, with the observation that the same was pre-mature, as the petitioner could move the Additional Sessions Judge and point out to him the Illegality arising in the case for necessary correction. The petitioner thereupon filed a petition under section 265-K, Cr. P. C. Before the Court on 29-9-1985, challenging the order summoning him to face trial also praying for his acquittal, which was dismissed on 22-10-1985.
Being aggrieved by the said order and the previous orders, the petitioner has moved the present petition (Cr. M. 265/Q of 1985) under section 561-A, Cr. P. C. For quashment of the proceedings against him, which is now before me for disposal.
4.. On behalf of the Abdul Waheed, petitioner, it is submitted that the private complaint should have been filed first before the Ilaqa Magistrate and not before the learned Sessions Judge, Gujranwala, and . That the order of the latter transferring the case to the llaqa Magistrate on 26-9-1984 was only with a view to force compliance of section 190 (3) Cr. P. C. And not to conduct any inquiry under section 202, Cr. P. C. It is further submitted that in the absence of any specific order from the learned Sessions Judge , or an Additional Sessions Judge calling upon the Ilaqa Magistrate to hold an inquiry, the Dacia Magistrate was not entitled in law to conduct the same, nor could he have arrogated to himself the function of conducting the same voluntarily. It is next contended that since the private complaint was not sent up to the Sessions by the Ilaqa Magistrate formally under section .190(3). Cr. P. C., the Sessions Judge could not take cognizance of the case and in the absence of the same he could not direct an inquiry or investigation under section 202, Cr. P. C. In support of his arguments the learned counsel has referred to Muhammad Yaqoob v. Muhammad Ismail (1), Farid v. Allah .Wasaya (2), Muhammad Adam v. Mst. Natho Bibi (3), Ali Asghar v. The State (41; Muhammad Shafi
(1) 1979 P Cr. L J Note 116 at p. 74 (2) PLD 1979 Quetta 156
(3) PLD 1977 Lab. 535 (4) 1982 P Cr. L I 415 v. Khushi Muhammad (1), Mehar Khan v. Yaqub Khan (2) and Doran Khan v. The State (3).
5. On behalf of the complainant-respondent it is submitted that the petition under section 265-K, Cr. P. C hied by the petitioner before the Additional Sessions Judge was not competent. It is further submitted that present quashment proceedings do not lie and that the petitioner should have filed a revision petition instead. In this connection, the learned counsel has relied upon Zafar All and others v. Muhammad and others Cr. M. 206/Q of 1985, decided by the Lahore High Court on 7-10- 1985. It is next contended that even assuming the case is formally sent up by the Ilaqa Magistrate to the Sessions under section 190 (3), Cr. P. C. And the latter referred it to the Ilaqa Magistrate for inquiry under section 202,, Cr. P. C., the same result would follow and since no prejudice has been caused to the petitioner, the defect, if any, stands cured by section 537, Cr. P. C. Lastly, it is contended that even assuming, for the sake of argument, that proceedings on the private complaint are illegal, the Additional Sessions Judge, on the basis of police challan, could have summoned the petitioner to face trial, as cognizance is taken of the offences and not offenders. In this connection, the learned counsel has relied upon Raja Khushbakhtur Rehman v. The State (4).
6. Replying to the arguments advanced by the learned counsel for the respondent, the learned counsel for the petitioner submits that a petition under section 265-K, Cr. P. C. Was competent before the Sessions. In this connection, the learned counsel has relied upon Muhammad Yaqoob v.
Muhammad Ismail. With regard to the application of section 537, Cr. P. C., it is submitted that the illegality committed being grave and in utter violation of the mandatory provisions of the law, the said section could not be pressed into service. It is lastly contended that in the presence of the discharge order of the Ilaqa Magistrate dated 29-1-1984, the Sessions Judge could only have summoned the petitioner on a private complaint, ordering an inquiry and appraising that report, or after some evidence had been recorded by him in the police challan case. In this Connection, the learned counsel has relied upon Bahadur v. The State (5), Wazir v. The State (6) and Asghar All v.
The State (7).
7. I have given my anxious consideration to this case. It is clear in law that a private complaint should first be filed before a Magistrat baying territorial jurisdiction in the matter, so that he can take cognizanc under section 190 (3), Cr. P. C., not for the purposes of commencing th trial, but in order to ascertain as to whether the case is one which required to be sent for trial to the Court of Session or is one which he can proceed to try himself. As held in Mehr Khan's case this cognizance o application of mind to this limited question by the Magistrate, constitute an "inquiry" under section 4 (k), Cr. P. C., which the Magistrate can postpone or adjourn under section 344(1), Cr. P. C., with power t remand the accused to judicial custody from time to time till the case ultimately sent to the Court of Session. No inference can be drawn from Mehr Khan's case (supra) that this limited inquiry also includes the inquir
(1) 1982 P Cr. L J 499 (2) 1981 SCMR 267
(3) PLD 1985 Quetta 188 (4) 1985 SCMR 1314
(5) PLD 1985 SC 62 (6) PLD 1962 Lah. 405
(7) 1983 P Cr. L J 2187 contemplated by section 202, Cr. P. C. The fact that section 190 (3), Cr. P. C. Clearly state that the Magistrate taking cognizance of the offence triable exclusively by a Court of Session "shall, without recording any evidence, send the case to the Court of Session for trial shows that the Magistrate cannot voluntarily embark on a preliminary inquiry. See Kama! Khan's case (1) and Asghar Ali's case. However, leaving this matter aside for a moment, what stands out prominently in this case is that the learned Sessions Judge whils transferring the private complaint to the Ilaqa Magistrate on 26-9-1984, did not call upon him to conduct an inquiry under section 202, Cr. P. C. Perhaps what the learned Sessions Judge had in mind was that the Ilaqa Magistrate would conduct the limited inquiry as to whether the case was triable by him or by the Magistrate, as held in Mehr Khan's case (supra), and to refer the case to him, if he felt that the case was so triable. In any case, under section 202, Cr. P. C., the Ilaqa Magistrate could not have gratuitously undertaken the inquiry of the nature referred to in that section, as he had no authority to take cognizance of offences exclusively triable by the Sessions as a Court of original jurisdiction ; that jurisdiction exclusively being with the Sessions under section 193 (1) of the Code. Further, the Magistrate also could not have started the inquiry, as the private complaint had not been transferred to him under section 191 or section 192, Cr. P. C. In the absence of any specific order by the Sessions Judge or the Additionally Sessions Judge directing an inquiry under section 202, Cr. P. C. The Ilaqa Magistrate was not competent to hold the same. Had the Sessions Judge or the Additional Sessions Judge given such a direction, he was not required to record the statement of the complainant on oath, as provided by the proviso to subsection (1) of section 202, Cr. P. C., as the compulsion to record such a statement under section 200 of the Code only falls on the Magistrate and not on the Sessions or an Additional Sessions Judge. The gratuitous inquiry conducted by the Ilaqa Magistrate is without jurisdiction and a nullity in the eye of law. It cannot, therefore, create any base for any framework by which the impugned orders of the learned Additional Sessions Judge dated 15-6-1985 and 22-10-1985 summoning the petitioner to face his trial, can be supported. If section 537, Cr. P. C. Is allowed to support such an order, it would permit all Ilaqa Magistrates to gratuitously conduct inquiries, in the absence of any direction in that behalf, which would amount to a usurpation of jurisdiction, which cannot be permitted. c The inquiry of the Ilaqa Magistrate being without jurisdiction, is a nullity in law and the orders of the learned Additional Sessions Judge dated 15-6-1985 and 22-10-1985 supporting the same, vis-a-vis the petitioner, are nothing more than en abuse of the process of the Court. Kamal Khan's case and Muhammad Saeed's case (2) cited by the learned counsel for the respondent are distinguishable, as those cases only relate to the question whether the filing of the private complaint before the Sessions Judge in the first instance, from where they were transferred to the Magistrate, who submitted the same back to the Sessions, was legal or not. The present matter was not involved. Further, in those cases there were orders either by the Sessions or by the Additional Sessions Judge directing an inquiry, but in the present case there is none.
8. On behalf of the respondent it is pleaded that even assuming that the proceedings on the private complaint are held to be illegal, yet the orders dated 15-6-1985 and 22-10-1985 can he sustained as the Additional Sessions Judge could have summoned the petitioner on the material found
(1) PLD 1979 Quetta 69 (2) 1984 P Cr. L J 1373 in the police challan case. Considering that the petitioner had been go discharged on the basis of the order of the Ilaqa Magistrate dated 29-1-1983, it is obvious that the Additional Sessions Judge could not have straightaway summoned the petitioner to face his trial on the basis o material in the police challan case, without first having recorded some evidence and having found some prima facie case against the petitioner in respect of the offences imputed to him. Where an accused is got disehargedged by the police from the Magistrate, the police strictly have no authority to reinvestigate the case, without applying to the Magistrate for the recall of his order, See Asghar Ali v. The State. Where the police do not apply for the recall of the order, the complainant has the right of filing a private complaint. If any authority is required for this view, Bahadur v. The State, Asghar Ali v. The State and Mehdi Hussain Shah v. Khizar Hayat (1) may be cited.
9. The objection of the learned counsel for the respondent that the petitioner under section 265-K, Cr. P. C. Filed by the petitioner on 29-9-1985 before the Additional. Sessions Judge did not lie, has no force. Where the inquiry itself was coram non judice subsequent orders summoning the petitioner were obviously without any legal basis. A petition under section 265-K, Cr. P. C. For acquittal on the basis that no case was made out against the petitioner was not incompetent.
10. The upshot of the above discussion is that the proceedings before the learned Additional Sessions Judge in the private complaint case deserve to be quashed.
11. For the foregoing reasons, this petition is accepted and the proceedings emanating from the inquiry conducted by the Ilaqa Magistrate under section 202, Cr. P. C. And ending with the impugned orders of the learned Additional Sessions Judge, Gujranwala, dated 15-6-1985 and 22- 10-1985 ; to the extent that they relate to the private complaint, are hereby quashed. Nothing herein contained shall prevent the private complaint filed by Amanullah, respondent, from being handed back to him for presentation before the Ilaqa Magistrate for being processed. In accordance with law. Nothing herein contained shall affect the proceedings pending in the police challan case to the extent that they relate to the accused, other than the petitioner, who have been summoned for their trial.