This Revision Petition bearing No. 43 of 1971 arises under the following circumstances.
2. An incident took place on 28th June, 1969, at breakfast time in the land of complainant Muhammad Ahsan which was of a fight and resulted in injuries to some persons. The F. I. R. Of this incident was lodged by complainant Muhammad Ahsan on the same date at 11 a. m. Under sections 14; 148, 447, 3,23 and 114, P. -P. C. At the Police Station Bakrani in Larkana District. 1 he Police investigated the case auk! Challaned it on 16-9-1969 to the Court of the Joint Civil Judge and Section 30. Cr. P. C. Magistrate. The accused sent up were the present seven petitioners who are, Uris and six others. The learned Joint Civil Judge and Section 30, Cr. P. C. Magistrate tried the case and by his judgment dated 16-9-1969 acquitted the petitioners, accused before him of the offence under section 148, P. P. C. And so far the remaining offence charged against them in the complaint were concerned issued directions that the matter be placed before the Controlling Authority under the Conciliation Courts Ordinance, 1961 (hereinafter referred to as the Ordinance), t. e., the District Magistrate of Larkana who should make it over for trial by a Conciliation Court under the Ordinance. It appears that the learned District Magistrate, Larkana instead of sending the case to the Conciliation Court for trial ordered the same to be tried by the Resident Magistrate, Larkana and transferred it to him. The learned Resident Magistrate convicted all the petitioners under sections 147, 447 and 323, P. P. C. He sentenced them under section 147, P. P. C. To six months' R.1.
Each, under section 447, P. P. C. To one month" R. I: and to pay a fine of Rs. 50 each and under section 323, P. P. C. To four months' R. I. And to pay a fine of Rs. 100 each and in default of payment of both the fines imposed the petitioners were directed to undergo two months' more R.1.
Thereafter, the petitioners preferred an appeal to the Sessions Court, Larkana which was decided by the Additional Sessions Judge on 22-3-1971 and the same was dismissed. Hence the present revision petition.
3. The only point raised by the learned counsel for the petitioners is that the Controlling Authority under the Ordinance. i.e., the District Magistrate, Larkana could not transfer the case for trial to the Resident Magistrate, Larkaua as it was referred for conciliation under the Ordinance by the Joint Civil Judge and Section 30, Cr. N. C. Magistrate and the learned District Magistrate had merely to pass an order directing the case to be tried under the Ordinance by a Conciliation Court. In support of this contention the learned counsel has relied upon section 3 (I) (a) of the Ordinance which is to the following effect.
3.(1) Notwithstanding anything contained in the Code of Criminal Procedure 1898 (Act V of 1898), or in the Code of Civil Procedure, 1908 (Act V of 1908).
(a) all cases falling under Part I of the Schedule shall, save as otherwise provided, hereinafter be referred to conciliation under this Ordinance, and no civil or criminal Court shall have jurisdiction to try any such case ; and"
It will be seen from this provision that the offences specified in Part I of the Schedule to the Ordinance could not be tried by any Criminal Court but that they could be tried by a Conciliation Court under the Ordinance only. In Part I of the Schedule offences under sections 147, 447 and 323, P. P. C. Are mentioned and this part also says that attempts to commit or the abetment of the commission of any of the offences specified in this Part would also be tried by the Conciliation Court. So that it is clear that the contention of the learned counsel for the petitioners is well founded and the provisions of the Ordinance just referred to above clearly ousted the jurisdiction of the Resident Magistrate, Larkana, from trying the petitioners for offences under sections 147, 447 and 323, P. P. C. As these offences could only be tried by a Conciliation Court under the Ordinance and not by ordinary Criminal Court. It appears that this point was not taken up heretofore before the learned Additional Sessions Judge in appeal or the trial Court i.e., the Resident Magistrate itself and hence it has gone unnoticed. Obviously, the convictions and the sentences of the petitioners recorded by the Resident Magistrate are illegal and void in law. Accordingly, the same are set aside.
4. The learned counsel for the petitioners has also invited my attention `to the notification of the Government of Sind bearing No. S. O. K. D. A. 4-2-71, dated 29th February, 1972, appearing in the Sind Government Gazette, Karachi, of Tuesday, March 7, 1972, whereby the Government of Sind has now appointed all Magistrates to perform within their respective jurisdictions the functions of the Chairman of Local Council in respect of criminal cases mentioned in the Schedule to the Conciliation Courts Ordinance, 1961 (Ordinance XLIV of 1961). This notification clearly shows that now any Magistrate can try a criminal case under the Ordinance as Conciliation Court. Hence, there is no difficulty now in the way of the case being retried afresh after the convictions and sentences of the petitioner have been set aside as ordered above.
5. 1, therefore, order that the petitioners shall be tried afresh on the charges for which they were convicted and sentences by the learned Resident Magistrate, Larkana by any Magistrate other than the Magistrate who tried and convicted them and, therefore, the R &]P of this case would be sent to the learned District Magistrate, Larkana for making over the ease for re-trial afresh to any other Magistrate competent to try it.
6. The petitioners are on bail and they shall remain on bail during the pendency of their retrial afresh. For the foregoing reasons this revision petition is allowed as ordered already above.