' Through this petition, the petitioner has sought quashment of the order dated 27-3-1989 passed by the learned Additional Sessions Judge, Sargodha.
2. Brief facts of the case are that on a report lodged by Akhtar Gul, father of Mukhtar Ahmad, deceased, the case under section 304, P.P.C. Was registered against the present petitioner vide F.I.R.
No,188, dated 28-6-1988 at Police Station City Sargodha. The challan was submitted against the petitioner in the Court of Munir Mubarik, Magistrate Section 30, Sargodha. The trial Court recorded the evidence and ultimately acquitted the petitioner on 16-10-1988 under section 249-A of the Cr.P.C. Respondent No,2 filed revision petition against the said order which was allowed by the learned Additional Sessions Judge, vide his order dated 27-3-1989. The case was ordered to be sent to the Ilaqa Magistrate for submission of the challan in the Sessions Court. It may be mentioned that a private complaint was also filed by respondent No,2 against the petitioner and 2 others namely Amir Khan and Muhammad Akram for the murder of Mukhtar Ahmad, which was dismissed by the learned Additional District Judge vide his order, dated 27-3-1989.
3. I have heard the learned counsel for the petitioner as well as the learned counsel for the respondents. On behalf of the State the case was argued by the learned Assistant Advocate- General. The learned counsel for the petitioner urged that on the one hand -the learned Additional District Judge had dismissed the private complaint on the ground that there was no justification to proceed further in the private complaint against the petitioner and two other persons and on the other hand has sent the case to the Ilaqa Magistrate for submission of challan in the Sessions Court. According to the learned counsel the impugned order is arbitrary and amounts to an abuse of the process of the Court. It shall give rise to futile proceedings. He further submits that even if Mst. Perveen Akhtar, respondent No,2 is examined as a witness it will merely add contradictions in the prosecution evidence and provide another ground for acquittal of the accused persons. He further submits that the Magistrate Section 30 was competent to try the accused for offence under section 304, P.P.C. In this connection he placed reliance on Budhan Chaudhry v. The State AIR 1955 SC 191 and Emperor v. Madan Lal AIR 1936 Pesh.
139. He also urged that the present petition was competent against the revisional order. In this respect, he placed reliance on Abdul Aziz v. The State and another 1985 P Cr. L J 1615, Dinal and 7 others v. Mian Najamuddin and another 1984 P Cr. L J 193 and Prof. A. Hameed v. The State 1979 Pcr.
LJ 1004. On the other hand the learned counsel for respondent No,2 urged that the Magistrate was not competent to try the case under section 304, P.P.C. He placed reliance on Allah Ditta v. Majeed and 2 others 1989 P Cr. L J 905. He submitted that under the High Court Rules and Orders, Chapter 24-A, Vol.III, it was emphasised that ordinarily Magistrate Section 30 should not try a case falling under section 304 of the P.P.C. He further urged that Mst. Perveen Akhtar respondent No,2 was an eye-witness and the revisional Court had rightly ordered that she be examined as a witness and that the case be tried afresh. The learned Assistant Advocate-General urged that the Magistrate was competent to try the case. In this connection he referred to the case of Ghulam Hussain v. The State 1985 P Cr. L J 2334.
4. Under the Schedule of the Cr.P.C. The offence under section 304, P.P.C. Is triable by the Sessions Court, exclusively. By virtue of provisions of section 304 of the Cr.P.C. a Magistrate, especially empowered under section 30 of the Cr.P.C. Can try all offences triable by the Sessions Court, not involving the sentence of death. Thus, in the strict legal sense a Magistrate Section 30 has the power and jurisdiction to try a case for an offence under section 304 of the P.P.C. In Bhudan Chaudhry's case a similar question was considered and it was held that if the State vests any Magistrate with powers under section 30, anybody who commits any offence not punishable with death and triable by a Court of Session is also liable to be tried by the Section 30 Magistrate. In Emperor v. Madan Lal it was held that Magistrate specially empowered under Section 30 of the Cr.P.C. Was competent to try a case falling under section 307 of the P.P.C. In Muhammad Riaz v. The State PLD 1985 FSC 420 it was held that a case involving the offence under Article 4 of the Prohibition (Enforcement of Hadd) Order (VI of 1979), was triable by a Sessions Judge or a Magistrate under section 30 of the Cr.P.C. The trial was actually held by a Magistrate Class I. It was held that the Magistrate Class I had no power to try the case and after setting aside the judgment of the trial Court the case was remanded for entrusting the same to a Magistrate specially empowered under Section 30 of the Cr.P.C. For trial. In Allah Ditta's case a learned Single Judge of this Court held that the case relating to a culpable homicide in which it was yet to be determined as to whether an exception could be claimed by the accused to bring it within the ambit of section 304/34, P.P.C. The case should be tried by the Court of Session. He referred to the provision of Chapter 24-A of the High Court Rules and Order Vol.III, in coming to the conclusion that cases of homicide should be tried by the Sessions Court. In Ghulam Hussain's case (relied upon by the learned Assistant Advocate-General) it was held that a Court of Session was competent to try any offence under the Penal Code and that in the cases triable exclusively by a Court of Session, a Magistrate had no jurisdiction to try it and must send it for trial to that Court. However, in case of an offence triable by a Court of Session as well as by a Magistrate Section 30 the Magistrate had a discretion to send the case for trial or not to the Court of Session but in exercising his discretion he was required to give adequate reasons. The tenor of this judgment is that Magistrate especially empowered under section 30 of the Cr.P.C. Can try offence not involving sentence of death.
5. It is true that in the High Court Rules and Orders, Volume. III, Chapter 24-A it has been laid down that ordinarily a Section 30 Magistrate should not try--
(i) cases in which he takes action on his own knowledge or information;
(ii) cases of homicide which appear, prima facie, to be cases of murder but in which the accused, may be able to establish an exception reducing the offence to culpable homicide not amounting to murder; and
(iii) cases in which a punishment of seven years' imprisonment would be inadequate.
' The above provision does not altogether exclude the jurisdiction of the Magistrate Section 30 to try cases not involving the sentence of death. As observed in Ghulam Hussain's case a Magistrate Section 30 for adequate reasons could try an offence which is also triable by the Court of Session.
The view that an offence exclusively triable by the Sessions Court not involving sentence of death could be tried by Magistrate Section 30 finds support from Budhan Chaudhry's case relied upon by the learned counsel for the petitioner. In Allah Ditta's case relied upon by the learned counsel for the complainant it was observed that Magistrate Section 30 was not competent to award maximum sentence under section 304, P.P.C. Hence it would be futile exercise if he tries the case and then transfers it to the Court of Session for trial. It was further observed that it was yet to be determined whether an exception could be claimed by the accused to bring his case under section 304, P.P.C. In the reported case originally a case was registered under section 307/34, P.P.C.
But on death of the victim the offence was converted under section 302/34, P.P.C. However, the challan was submitted under section 302/34, P.P.C. The case was sent for trial to the Assistant Commissioner, Rahimyar Khan, who sent it to the Sessions Court stating that the case was triable by the Court of Session. It was entrusted to Additional Sessions Judge, before whom the learned counsel for the accused pointed out that the case was triable by a Section 30 Magistrate.
Consequently he sent it to the Judicial Magistrate with powers under Section 30 of the Cr.P.C. The said order was attacked in revision petition which was allowed by the High Court. After referring to the provisions of High Court Rules and Orders and the judgment reported in Ghulam Hussain's case the Court accepted the revision petition and directed the learned Additional Sessions Judge to try the case himself. The said judgment proceeds on the peculiar facts of the case and cannot be relied upon for urging that a Magistrate Section 30 has no jurisdiction to try an offence falling under section 304 of the P.P.C. It is one thing to say that ordinarily a Magistrate Section 30 should not try cases of homicide which, prima facie, appear to be of murder, and quite another to lay down that he has no jurisdiction to try a case falling under section 304 of the P.P.C. If, prima facie, a case does not appear to be one of murder and the material on the record clearly shows that the accused could ligitimately claim an exception then it could be legally tried by a Magistrate Section 30 despite the provisions of High Court Rules and Orders quoted above. However, this would be possible only in some exceptional and rare cases.
6. In the present case the eye-witnesses including Akhtar Gul, the father of the deceased, who had lodged the FIR stated that Mukhtar Ahmad deceased was reprimanded by Gulzar Ahmad, his brother, whereupon they started abusing each other. Gulzar ahmad accused was suddenly provoked and gave Chhuri blows to the deceased who died as a result of the same. The eye- witnesses also stated that there was no previous background of enmity between the accused and the deceased who admittedly were real brothers. Thus, in view of the peculiar facts of the present case the offence, prima facie, appeared to be one under section 304, P.P.C.
7. No doubt, in the charge the name of the deceased was not correctly mentioned by the trial Court but this defect was curable under section 537 of the Cr.P.C. The said error did not cause any prejudice to the accused who was fully conspicuous that he was being tried for killing his own brother named Mukhtar Ahmad. It is significant to mention that the private complaint instituted by Mst. Perveen Akhtar for trial of Gulzar Ahmad etc. Under section 302/34, P.P.C. Was dismissed by the learned Additional Sessions Judge for a variety of reasons. The order of dismissal of the private complaint has been upheld by this Court, while deciding Criminal Revision No,294 of 1989. After dismissal of the private complaint on merits, in which even Mst. Perveen Akhtar was examined, the fresh proceedings in the challan case under section 304, P.P.C. On the same facts would be a mere exercise in futility and amount to an abuse of the process of the Court.
8. Ordinarily, this Court does not interfere in the exercise of inherent powers under section 561-A of the Cr.P.C. In the orders passed by the Sessions Court under section 439-A of the Cr.P.C. But relief is not denied in suitable cases, either to meet the ends of justice or to avoid the abuse of the process of Court. This view finds support from the cases of Abdul Aziz v. The State and another 1985 P Cr. L J 1615, Dinal and 7 others v. Mian Najamuddin and another 1984 P Cr. L J 193 and Prof. A. Hameed v.
The State 1979 P Cr. IJ 1004. In the present case, had the learned Additional Sessions Judge opted to try the challan case and the complaint case together, kept the complaint case pending till the submission of the challan in the other case before him, then there would have been some legal weight in the impugned order. However, after dismissal of the private complaint for cogent reasons, no fruitful result can be achieved through the fresh trial of the accused in the challan case.
9. For the foregoing reasons I allow this petition and quash the order, dated 27-3-1989 passed by the learned Additional Sessions Judge, Sargodha.