This reference is made by the Additional Sessions Judge. Karachi, for quashing the case pending against Rais Ahmed under section 366, P. P. C. In the Court of A. C. M. No. 28, Karachi.
2. The accusation related to the forcible abduction of Mst. Khatoon Jannat on 8th October 1969 but after investigation the police submitted before Chowdhry Muhammad Yousuf. Additional City Magistrate, a report under section 169, Cr. P. C. On 16th October 1969, saying that because of the want of evidence no challan can be submitted and an order may, therefore, be passed to that effect for releasing him on his personal bond. The learned Magistrate, while releasing Rais Ahmed on bail wrote out the following order on 20th October 1969:-- "As the request of the Investigating Officer has not been ac--ceded to and the complainant has been ordered to be summoned as a witness, she may be summoned accordingly and the accused informed and directed to attend. Copies of the statements under section 161, Cr. P. C. If any, may be supplied to the accused and also ordered to be released on bail in the sum of Rs. 10,000 with P/B in like amount. Bail accepted provisionally up to 29-10-69 for confirmation of bail.".
Again on 29th October 1969 he confirmed the bail and summoned the P. Ws. And thereafter examined Mat. Khatoon Jannat. Mahmoodul Haq, Hasan Ali, Noor Muhammad, Noor Bano, Muhammad Nuzhat Ali Khan, Mst. Mukhtar Jahan, Talat Siddiqui, Ashfaq Qureshi and Muhammad Azam. He then examined Rais Ahmed on 7th January 1970 under section 342, Cr. P. C. And the same day he enquired from him as to whether he would like to be tried by him or by some other Magistrate. Rais Ahmed stated that he wished to be tried by some other Court. Despite this answer he framed a charge the same day under section 366, P. P. C. Again the same day the learned Magistrate wrote a letter to the Additional District Magistrate, Karachi, for the transfer of the case to some other Magistrate and on 10th January 1970, it was transferred to the Court of A. C. M. No. 28 "for disposal according to law".
3. From the order dated 20th October 1969 it does not appear that he had taken cognizance of the offence in terms of section 190 (1)(c), Cr. P. C. As is clear from the following sentence in that order:- "However, before passing any order I would like to hear the complainant in this case including the prosecutrix."
It was only on 29th October 1969 that he summoned the prosecu--tion witnesses, examined them and thereafter recorded the statement of Rais Ahmed and at that stage enquired from Rais Ahmed whether he would like to be tried by him and proceeded to frame the charge despite the reply of Rais Ahmed that he would like to be tried by another Court. In my view, cognizance was taken on 29th October 1969, as on that date he had applied his mind to summon the prosecution witnesses.
It is at this stage that he should have asked Rais Ahmed whether he would like to be tried by him, for section 191, Cr. P. C. Prescribes that consent should be taken before any evidence is recorded.
Here the learned Magistrate adopted a novel procedure of examining all the witnesses before taking the consent and of even framing the charge despite his refusal to be tried by him. Assuming that he was empowered to take cognizance under section 190 (1) (c), Cr. P. C. Still he had no jurisdiction to record the evidence and follow the procedure of a warrant trial in disregard of the mandatory provision quoted above. The appellate Court has also taken the view that there was a disregard of section 191, Cr. P. C. And on that ground has recommended for the quashment of the proceedings.
4. The learned counsel for the State has supported the reference. In this view of the matter, I would accept it and quash the proceedings from the stage after the order dated 29th October 1969.