' Muhammad Khalid petitioner has moved this abashment petition under section 561-A, Cr.P.C.
Against the order passed by Magistrate 1st Class, Pakpattan Sharif respondent No,
1. Brief facts of the case which gave rise to this abashment petition are that a case vide F.I.R. No,115/95, dated 14- 4-1995 under section 12, Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 was registered against the petitioner at Police Station City Pakpattan Sharif on the complaint of Abdul Aziz for the abduction of his son Maqbool Ahmad and for commission of sodomy with him.
2. During investigation of the case the Investigating Officer deleted the offence under section 12, Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 and substituted offence under section 377, P.P.C. And submitted the challah before the Ilaqa Magistrate. The learned Magistrate 1st Class, Pakpattan Sharif on 27-11-1995 vide impugned order sent the case to learned Sessions Judge observing that he had gone through the judicial file and the police file. He had also examined the F.I.R., statements of the witnesses recorded under section 161, Cr.P.C. The report of the Chemical Examiner and came to the conclusion that prima facie offence under section 12, Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 was made out and he had no jurisdiction to try the accused for the said offence and consequently sent the file to learned Sessions Judge, Pakpattan Sharif for further proceedings.
3. Being aggrieved the petitioner filed this petition and the learned counsel for the petitioner argued that the learned Magistrate had no jurisdiction to pass the impugned order and was not justified in sending the case for trial to the Court of Sessions Judge, Pakpattan Sharif.
4. I have heard the learned counsel and perused the impugned order Annexure "B". Section 190(1- b), Cr.P.C. Provides that District Magistrate or Sub-Divisional Magistrate or any other Magistrate especially empowered in this behalf may take cognizance of the offence upon the report in writing of such facts made by any Police Officer.
5. Subsection (3) of section 190, Cr.P.C. Provides that a Magistrate taking cognizance under subsection (1) of an offence tribal exclusively by a Court of Session shall without recording any evidence send the case to the Court of Session for trial.
6. This case was sent to the Court vide a report of the Police Officer recorded under section 173, Cr.P.C. And the Court took cognizance on the basis of the same. The learned Magistrate was duty bound to go through the facts of the case before framing the charge and decide whether the case was triable by the learned Magistrate or by some other Court of competent jurisdiction. He rightly pointed out that after going through the material on record he came to the conclusion that prima facie offence under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, VII, 1979 was made out and he had no jurisdiction to try the said offence. He was legally required to send it to the Court of Session without recording the evidence. The impugned order is neither illegal nor improper. It cannot be termed as misuse of the process of law. 'psi dixit of the police is not binding upon the Courts. It would not create any hindrance in the way of a Court to go through the facts of the case and decide prima facie what offence is made out from the material on record. The deletion of section 12, Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 by the police agency does not mean that the Court should shut its eyes and to act blindly upon the report of the police. It is the duty of the Court to determine what offence is constituted from the material on record.
7. Section 347, Cr.P.C. Provides that, if in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, he shall send the case to the Court of Session or High Court, for trial.
8. This provision also authorises the Magistrate to send the case to the Court of Session for trial if it appears to him that case is one which ought to be tried by the Sessions Judge. Magistrate has the jurisdiction to pass the impugned order, which is upheld.
' For what has been stated above, this petition has no merits and is consequently dismissed in limited.