' Criminal Appeal No,51 of 1992 filed by Muhammad Saleem on of Fazal Kareem and Criminal Appeals Nos.145 of 1992 and 89 of 1992 filed by Faqir Jan son of Abdullah Sher (Appeal No,89 of 1992 filed from the jail) are *directed against the judgment of Assistant Commissioner/Magistrate Section 30, Attock, dated 26-2-1992 whereby he convicted and sentenced both the appellants/convicts under section 395, P.P.C. To seven years' R.I. And a fine of Rs,5,000 each and ten stripes each, or in default of payment of fine, to further undergo R.I. For one year each of them. This order shall disposed of all the above matters.
2. Brief facts of the prosecution case are that Mst. Safooran Bibi Qureshi complainant/P.W.1 was A.E.O. Markaz Hazro, District Attock. On 6-1-1992, she withdrew an amount of Rs,5,42,676-52 as salary in respect of the staff of primary and middle schools of Markaz Hassanabdal and Hazro, but on the said date, she could not disburse the said amount. On 7-1-1992 at 9-30 a.m., the complainant was present in her office alongwith other teacheiouses in connection with the meeting and disbursement of pay, three persons armed with pistols came there and went straight in the room of her peon namely, Muhammad Saleem, who was caught hold by them from his collar and dragged him to ,her office. The aforesaid persons asked the appellant by saying that " ". It was further alleged that they ordered the complainant to take out the bag, but she refused to do so. On this, Muhammad Saleem appellant said "Baji gave them money". The complainant was mal-treated by the said persons and took the bag contained an amount of Rs,4,42,676.52 and decamped from the spot by locking the door from outside. The complainant alongwith Mst. Parveen Akhtar went to the police station had lodged the report at 10-30 a.m.
3. Learned counsel contended that the judgment is not in conformity with section 356, Cr.P.C. And mandatory provisions of section 340(2) and section 103, Cr.P.C. Further, contended that the case was registered under section 382, Cr.P.C. While the sentence has been awarded under section 395, P.P.C., as the challan was submitted under section 395, P.P.C. By the Investigating Officer. Learned Assistant Commissioner/Magistrate Section 30 lacked jurisdiction as the Sessions Judge can take cognizance of offence under section 395, P.P.C. And referred to the schedule of Cr.P.C. Learned counsel relied upon case Abdul Rehman v. Allah Diawaya PLD 1950 BJ 96 wherein it has been observed that where the evidence of the witnesses is not recorded in compliance with the provisions of section 356, clauses (1), (3) and (4), Cr.P.C. As the provisions of clause (1) of section 356, Cr.P.C. Are imperative and its non-compliance cannot be condoned, further where a Magistrate omits to record the evidence in the mode provided in section 356, Cr.P.C. Is a material error sufficient to set aside the proceedings.
4. The argument advanced by the learned counsel carries weight that the offence under section 395, P.P.C. Is triable by the Court of Sessions and the learned Assistant Commissioner/Magistrate Section 30 lacked jurisdiction. When confronted, the learned State counsel frankly conceded that the learned Court had passed the impunged order beyond its jurisdiction.
5. Resultantly, I accept both the appeals, set aside the impugned order passed by the Assistant Commissioner, Attock, and remand the case to the learned Sessions Judge, Attock, for recording evidence afresh in this case and then pass an appropriate order on it. The learned Sessions Judge may hear the case himself or entrust it to any other learned Additional Sessions Judge, in his District.