' Sardara and Mohammada were found guilty under section 323/34, P. P. C. By the Sub-Divisional Magistrate, Mandi Bahauddin and were sentenced to four months' R. I. Each on 18-5-64. Aggrieved against their conviction and sentence they filed an appeal which was accepted by the learned Additional Sessions Judge, Gujrat on 18-7-64 on the legal objections that as section 323, P. P. C.
Was within the compulsory jurisdiction of Union Council according to Schedule I, therefore the Sub- Divisional Magistrate, Mandi Bahauddin who convicted the appellants Sardara and Mohammada was not competent to do so. This very Court while passing this order also observed that the respondents stood adequately punished, therefore their retrial was not advisable. This judgment was challenged vide Criminal. Revision 42 of 1966 by Babu Khan before this Court on 16-2-66. My Lord Mr. Justice Muhammad Afzal Cheema, as his Lordship then was, and now in the Supreme Court, admitted this petition on the following grounds:-
(1) That firstly Schedule does not oust the jurisdiction of criminal Court and secondly if that be so section 34, P. P. C. Was not included in the Schedule with which the respondents in the instant case had also been charged under section 323, P. P. C.
2. The case has been called several times during the course of the day but nobody has appeared on behalf of the respondents although the record of the case shows that they stood duly represented by Ch. Ghulam Mohyuddin, Advocate. I have verified the fact that the name of this counsel was duly listed in the cause list of today. I have no alternative but to decide the
3. I have heard learned counsel for the petitioner and have perused the law on the point on which this petition was admitted. The reading of section 6 of Conciliation Courts Ordinance, 1961 discloses as follows:- "When the place of occurrence and residence of the parties to dispute are situated in the same Union Council or when the place of occurrence and residence at least one of the parties lie within the area of such Union Committee, then shall have the jurisdiction to try a case shown in the Schedule I of this Ordinance."
' Learned counsel for the petitioner has submitted that the facts of the case would show that in the instant case four Union Councils were involved. The place of occurrence was situated in one Union Council while the complainant and accused are residing in different Union Councils and to top all place of occurrence was also situated in the different Union Council. I am fully convinced that in view of this situation the learned trial Court was fully justified to take cognizance of this case which was submitted to it for adjudication. While going through this legal aspect I also further find that the respondents in this case stood charged under section 34, P. P. C. Which was not tribal exclusively by the Union Council and therefore this factor also justified the trial by the ordinary criminal Court.
4. In view of the above analysis, I have no hesitation to hold that learned Sessions Judge fell into grave error by accepting this appeal on the ground that the offence for which respondents were tried was exclusively within the jurisdiction of the Union Council. I have also taken into account, the second ground which further persuaded the learned Sessions Judge to accept the appeal and to decline the trial and find that he has again committed a positive error arriving at the conclusion that the respondent stood adequately punished. While going through the record to verify the correctness of this observation I find that the respondents were released on bail immediately after they were convicted and their sentence was suspended under section 526, Cr. P. C. Therefore, it cannot be said that the offence committed by the respondents stood adequately punished and therefore the retrial would have been inadvisable.
5. I would not have ordinarily interfered with the judgment of learned Sessions Judge if it would have been passed on facts and good reasons but what I see is that he has recorded the acquittal of the respondents only on legal grounds which can hardly be sustained in view of the law relating to, this matter.
6. The result is that I set aside the order of learned Sessions Judge and direct that he should rehear the appeal on merits. Respondents will be summoned by the Court to defend themselves before the Court of learned Sessions Judge.