The facts leading to the filing of this revision are that a case under section 302/307/34, P.P.C. Was got registered by one Muhammad Ajaib, against the petitioners and another with Police Station Jhal Chakkian, District Sargodha. The case was investigated by the police, who at the conclusion, found all the accused innocent and did not challan them, instead, Muhammad Ajaib complainant in the above case was challaned for the murder of Muhammad Khan. Muhammad Mumtaz a relation of said Muhammad Ajaib filed a private complaint against the accused in the F.I.R. The complaint was entrusted to Additional Sessions Judge, Sargodha, who sent the same to Ilaqa Magistrate for recording of preliminary evidence and report. Report was submitted on 14-7-1990 wherein a finding was given that the accused stood involved under section 307, P.P.C. And the complainant in the F.I.R. Was responsible for an offence under section 304, P.P.C. Additional Sessions Judge, while holding that the learned Magistrate was not competent to give a finding, the sole requirement was to give a report for offence under section 302, P.P.C. On the preliminary inquiry therefore, the case was sent to another Magistrate under section 202, Cr.P.C. For report. The report was submitted on the basis of which process against the petitioners and another was issued. In the present revision learned counsel for the petitioners assailed the order of Additional Sessions Judge, dated 25-11-1990 summoning the petitioners as accused.
It was contended by learned counsel for the petitioners that there was no provision in Cr.P.C. Under which the learned Additional Sessions Judge could ignore the report of Ilaqa Magistrate, and send it to another Magistrate for report under section 202, Cr.P.C. Argued that in the presence of report of the Ilaqa Magistrate the learned trial Court was not justified in issuing process and the complaint should have been dismissed. Contentions were seriously controverted by learned counsel for the complainant.
2. 1 have heard the learned counsel and gone through the file. Learned Additional Sessions Judge alone had jurisdiction to take cognizance of the case, he had sent the complaint to Ilaqa Magistrate for recording of preliminary evidence and submission of report; it wad within the competence of Additional Sessions Judge to agree with the report or to proceed otherwise. There is no provision in law which makes it mandatory on the part of the Court A to accept the report submitted to it under section 202, Cr.P.C. Though there is no provision in Cr.P.C., empowering the Court to send for another report pertaining to complaint case. Complaint was entrusted to another Magistrate for report under section 202, Cr.P.C., for the reason that the learned trial Court came to the conclusion that the learned Magistrate had exceeded his jurisdiction by arriving at the conclusion which was beyond the scope of inquiry. In these circumstances, I don't think any exception can be taken to the order of the learned trial Court entrusting the complaint to another Magistrate. Even otherwise as has already been discussed that the learned trial Court was well within its jurisdiction to agree with the report or to proceed otherwise. 1, however, agree with the contention of learned counsel for the petitioner that the learned trial Court issued bailable warrants against the petitioners, but, when they appeared instead of releasing them after taking bail bonds, he sent them to jail. Under section 91, Cr.P.C., the learned trial Court should have allowed them bail.
This has led to an apprehension in the mind of the petitioners that they may not get fair handed impartial trial from the learned trial Court.
3. For what has been discussed above, I do not find any merit in the petition which is accordingly dismissed. However, it is directed that the file C shall be sent to Sessions Judge, Sargodha, who shall entrust the same to any Court of competent jurisdiction. Petition is dismissed.