' This revision petition is directed against an order of the learned Sessions Judge, Mansehra dated 2-9-1992 whereby he returned the case to the trial Court i,e, the Court of Magistrate Mansehra empowered under section 30, Cr.P.C. To try the accused.
2. The brief facts of the case are that the petitioner complainant lodged a report against respondents 2 to 4 vide F.I.R. No,75 dated 9-3-1992, Police Station Shinkiari under section 324/34, P.P.C. For causing injuries to him and his son Abid with the fire-arms. Challan of the case was submitted in Court of Magistrate with Section 30 powers wherein an objection was raised by the complainant that according to Schedule II the offence under section 324, P.P.C. Is triable by the Court of Session, therefore, the Magistrate has no jurisdiction to proceed in the matter. The contentions of the learned counsel for the petitioner prevailed with the learned Magistrate who vide his order dated 26-8-1992 submitted the file to the learned Sessions Judge for trial and directed the accused to appear before the learned Sessions Judge, on 2-9-1992. Upon the receipt of the file the learned Sessions Judge passed the following order which has been impugned herein: "The case is returned to the trial Court. He is competent to try on the same analogy of S.307, P.P.C."
3. Learned counsel for the petitioner contended that according to Schedule II the offence falling under section 324, P.P.C. Is triable by the Court of Session, whereas the offences falling under sections 337-A(i) and 337-F(i)(ii) are triable by the Court of Magistrate Ist Class. He also referred to sections 28, 30, 32 and 34 of Cr.P.C. And stated that according to section 32 the Court of Magistrate Ist Class can pass the sentence of imprisonment for a term not exceeding 3 years and a fine not exceeding Rs,15,000 whereas the newly-added sections entail punishment of Qisas, Diyat, Arsh and Daman which cannot be imposed by a Court of Magistrate Ist Class as the same are not provided under section 32(i)(a), Cr.P.C. He contended that according to Schedule II of Cr.P.C. The offences like 337-A(i), 337-F(i)(ii)(iii), 337-H and 337-I are punishable with Qisas, Arsh and/or Daman which under section 32, Cr.P.C. The Court of Magistrate Ist Class is not empowered to impose. He submitted that the newly-added sections are only triable either by the Court of Session or by the Magistrate empowered under section 30 who can impose the punishment provided by the relevant laws. The case in hand has been registered under section 324, P.P.C., therefore, it is exclusively triable by the Court of Session and the learned Sessions Judge has committed legal error in sending back the case for trial to the Court of Magistrate.
4. Learned counsel for respondents 2 to 4 conceded to the arguments advanced by the learned counsel for the petitioner but submitted that the order of the learned Sessions Judge does not suffer from any legal infirmity and does not warrant interference by this Court because the trial Court is empowered under section 30, Cr.P.C. Having jurisdiction to try all the offences not punishable with death. The learned counsel, however, admitted the legal position that the Magistrate Ist Class has no jurisdiction to try any of the cases falling under sections 334 to 337 since they entail the punishment of Qisas, payment of Diyat, Arsh and Daman as principal punishments and section 32 does not empower him to pass any such punishment, therefore, the said offences can only be tried either by a Court of Session or by a Magistrate with section 30 powers.
5. The learned Assistant Advocate General also endorsed these arguments. - 6. I have heard the learned counsel for the parties and have gone through the record of the case.
7. According to Schedule II the offence falling under section 324, P.P.C. Is triable by the Court of Session. Section 324 P.P.C. For convenience sake is reproduced hereunder:-- "324. Attempt to commit Oatl-i-amd.- --Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused qatl, he would be guilty of qatl-i- amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall be liable to the punishment provided for the hurt caused: ' Provided that, where the punishment for the hurt is qisas which is not executable, the offender shall be liable to arch and may also be punished with imprisonment of either description for a term which may extend to seven years."
' Plain reading of the above section would show that it consists of 2 parts, where the attempt is made on the life of a person which proves ineffective then the offence would be liable to imprisonment of either description for a term which may extend to 10 years and if the hurt is caused, then in that case the offence shall be liable to punishment provided for the hurt caused. In the cases in which hurt is caused then the offence is to be ascertained keeping in view the kind of hurt as enumerated under section 332-C, P.P.C. After the application of the relevant section of law, reference has to be made to the Second Schedule to find out the Court which can try such an offence. There are certain offences like sections 334 and 336, P.P.C. Which are exclusively triable by the Court of Session whereas some of the offences like section 337-A(ii) to (vi), P.P.C. Are triable both by the Court of Session or Magistrate Ist Class and another category of offences like sections 337-A(ii), 337-F(i) to (ii) P.P.C. Are exclusively triable by the Court of Magistrate Ist Class. Offences under sections 324 to 338-C, P.P.C. Entail the punishment of Qisas, payment of Diyat, Arsh, Daman which are the principal punishments fot the offences named above but the Magistrate Ist Class as per section 32, Cr.P.C. Has no power to impose such punishments, therefore, such sentences passed by him would be deemed to be illegal and without jurisdiction. As such to remove this anomaly section 32 of Cr.P.C. Requires amendment in the light of the punishments provided for the aforesaid offences or the offences should be made either triable by a Court of Session or Magistrate Ist Class having power under section 30, Cr.P.C. This revision petition is accordingly disposed of.