1. ' Applicant Zahid Ahmed has in the present criminal miscellaneous application invoked the inherent jurisdiction of this Court, praying therein that the orders passed by the learned Judicial Magistrate dated 5-9-1996 and learned II-Additional Sessions Judge dated 19-1-1998, be set aside as being without lawful authority, being Coram non juice and illegal.
2. ' The relevant facts leading to the present petition are that applicant Zahid Ahmed on 8-2-1995 lodged F.I.R. No,28 of 1995 at Police Station Sher Shah under sections 454, 506-B, 337-A, 147 and 148, P.P.C. Read with section 14 of Ordinance VI of 1979 (E.H.O.). The police after conducting usual investigation challenged the respondents Nos.1 to 3 in this petition, in the Court of S.D.M., Site on 9- 3-1995 who framed the charge in the case on 5-9-1995 and recorded evidence of two prosecution witnesses namely Muhammad Yousuf and Wali Rehman. It appears that applicant not being satisfied with the trial of the case, before the S.D.M., moved an application to the Sessions Judge who was pleased to transfer the case form the Court of S.D.M. To the Court of Judicial Magistrate.
3. Thereafter, the applicant/complainant made an application before the Judicial Magistrate praying that the trial of the accused/respondents be held as afresh as according to the applicant the proceedings which took place before the S.D.M were not according to law. However, the learned Judicial Magistrate rejected the above said application filed on 9-6-1996 by his order, dated 5-9- 1996. Being aggrieved with the order of learned Judicial Magistrate the applicant preferred a revision application under section 435/439(A), Cr.P.C. Before the Court of Sessions, which revision application was finally disposed of by learned II-Additional Sessions Judge, who by his order dated 19-1-1998 dismissed the said applications, upholding the order passed by the Judicial Magistrate.
4. ' It is against the order of learned II-Additional Sessions Judge that the applicant has filed this petition wherein he has prayed as above.
5. ' I have heard the learned counsel for the applicant/complainant as well as for the respondents Nos.1 and 3 and Mr. Agha Jafir Ali appearing for the State.
6. ' The learned counsel for the applicant has contended that the orders passed by the learned Judicial Magistrate and the II-Additional Sessions Judge are illegal and liable to be set aside as according to the learned counsel the S.D.M. Had no jurisdiction over the matter as after the separation of judiciary, the executive Magistrate ceased to have jurisdiction over the cases like the present one (F.I.R. No,28 of 1995 under sections 454, 337-A, 506-B, 147 and 148, P.P.C. Read with section 14 of Ordinance VI of 1979 (E.H.O.). He has placed reliance on PLD 1994 SC page 105 and PLD 1995 Lah.
147. The learned counsel contends that 23rd March, 1994 was the last date on which judiciary stood separated from executive, in pursuance of mandate provided under Article 175(3) of the Constitution of Islamic Republic of Pakistan., 1973.
7. ' The learned counsel for the applicant has further asserted that all proceedings taken or being taken by executive Magistrate who are under the control of District Magistrate in the country would be illegal and without lawful authority and as such proceedings of the present case then pending before the S.D.M. Stood annulled and were Coram non juice. He has further stressed that the judgment reported as PLD 1994 page 105 is final judgment of the apex Court of Pakistan and under Articles 189 and 190 of the Constitution is not only binding on all the executive and judicial authorities in the country but in discharging their constitutional obligation they have to act in aid of Honorable Supreme Court of Pakistan and they are also bound to implement it in letter and spirit.
8. The orders impugned in the petition are contrary to the law laid down by the Honorable Supreme Court as per the above referred two reported cases, as such same are illegal, without lawful authority, Coram non judice and liable to be set aside. The learned counsel has lastly stated that the Additional Sessions Judge also did not apply his judicious mind to the facts and law involved in the case and he has passed a wrong order which also cannot sustain and is liable to be set aside.
9. ' Mr. Abdul Muneem Khan learned counsel appearing for respondents Nos.1 and 3 has contended before me that the two prosecution witnesses namely Muhammad Yousuf and Wali Rehman who were examined before the learned S.D.M. Did not support the prosecution case and that, in fact, is the reason for which the complainant/applicant filed the revision application before the sessions Court and the present petition before this Court. He has stated that S.D.M. Did not commit any illegality in examining the prosecution witnesses when he proceeded with the trial of the case, as 'according to him the two prosecution witnesses ,were duly examined and cross-examined by the counsel for the accused/respondents. The learned counsel for respondents has lastly submitted that the present proceedings are motivated and according to him the proceedings which took place before March 1996 are valid in the light of the Supreme Court decision with regard to the separation of judiciary. The learned counsel has however failed to cite that decision of Honorable Supreme Court of Pakistan in this regard.
10. ' The learned counsel concluding his arguments has once again stressed that purpose of complainant/applicant in filing the present proceedings is only to bring the two prosecution witnesses before the Court of Judicial Magistrate for recording their evidence afresh.
11. ' Be that as it may, the most point which arises in this matter and calls for a decision is, as to whether at the relevant time the Court of S.D.M. Was competent to hold the trial of the respondents as accused in the case.
12. ' The learned counsel for applicant has then referred to PLD 1993 FSC page 225 which enunciates a provision of law of evidence to the effect that proceedings before a Magistrate, lacking jurisdiction cannot be termed as judicial proceedings and statement recorded in those proceedings were held to be Coram non juice and inadmissible in evidence.
13. ' The learned counsel has lastly drawn my attention to a notification dated 28-9-1995 issued by the Home Department, Government of Sindh wherein powers have been conferred on the executive Magistrate to deal with and try the offences falling under the minor acts. Bare perusal of said notification reveals that the executive Magistrates have not been conferred powers to try cases under the Pakistan Penal Code except one under section 188 of P.P.C. While the Judicial Magistrates have been conferred powers to deal with and try the offences falling under all laws except those specified in the said notification.
14. ' The learned counsel appearing for the State has not disputed the factual contentions nor has controverted any of the legal pleas raised by the learned counsel for the applicant.
15. This Court in exercise of its inherent jurisdiction is competent to quash orders which are without jurisdiction, coram non judice, illegal or mala fide.
16. ' The learned S.D.M. In view of the above legal position was not competent to hold trial of the case in question and was not competent to have framed the charge against the accused or to proceed further with the trial of the case by examining prosecution witnesses. Even under the latest amendment brought about through the Legal Reforms Act, 1997, (XXIII of 1997) in the Law Reforms Ordinance, 1972, in section 29 an executive Magistrate is competent only to try an offence punishable with imprisonment for a term not exceeding three years.
17. ' The case in question before the learned S.D.M. Was firstly a case under Pakistan Penal Code and the offence being not under section 188, P.P.C., the learned S.D.M. Was devoid of jurisdiction to try the case. Further, section 29 of Law Reforms Ordinance, 1972 exclusively bars the jurisdiction of executive Magistrates to try offences which are punishable for more than three years imprisonment.
18. ' In view of the above discussion criminal miscellaneous application (No,52 of 1998) is allowed and proceedings conducted by the S.D.M. Are hereby quashed as being without lawful authority, Coram non juice and illegal. The orders passed by the learned 11-Additional Sessions Judge and the Learned Judicial Magistrate are hereby set aside. The learned Judicial Magistrate/Trial Court will be competent to deal with the case and hold trial afresh with the framing of charge against the respondents/accused. M.A. No,252 of 1998 also stands disposed of.