1. ' This revision application under sections 435, 436, 439, read with section 561-A, Cr.P.C. Is directed against the order, dated 31-8-2000 by the learned HI-Additional Sessions Judge, Mirpur Mathelo.
2. ' The applicant is aggrieved with the following finding of learned Additional. Sessions Judge; "the offences proved on record are under sections 337-A(1), 337-F(I), 347, 348, 379, 403, 504, 506 read with section 34, P.P.C. Which are exclusively triable by the Magistrate of First Class. The complaint is, therefore, not entertainable by the Court of Session as offences under sections 336 and 337-K, P.P.C. Are not made out on record and the sections made out are triable by Magistrate of First Class. I, therefore, order to return the private complaint in the original with the copy of this order to the complainant for filing the same before the Magistrate of the First Class having jurisdiction".
3. ' The learned counsel for the applicant has submitted that the purpose of sections 337-K and 348, P.P.C. Are same. There is a difference of gravity of offence only. The offence under section 348, P.P.C.
4. Is made out if any person is wrongfully confined for the purpose of extorting from the person confined or any person interested in the person confined any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the person confined or any person interested in the person confined to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security".
5. ' According to the learned counsel if hurt is caused for the purpose of extorting from the sufferer or any person interested in the sufferer any confession or any information which may lead to the detection of any offence or misconduct or for the purpose of constraining the sufferer or any person interested in the sufferer to restore, or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to restoration of any property or valuable security, the offence shall be punishable under section 337-K, P.P.C. Thus, the contention of learned counsel is that the sole difference in the ingredients of offence under sections 348 and 337-K, P.P.C. Is that in the former section a wrongful confinement is to be proved for achieving the purpose enumerated therein while for the latter section causing of hurt is to be established for achieving the same purpose. The learned counsel has further submitted that causing of hurt stands, prima facie, established with the medical evidence and the ocular testimony. He has, therefore, submitted that causing of hurt is prima facie, established and the learned Additional Sessions Judge has himself given finding that a prima facie case is made out under section 348, P.P.C., the result would be that an offence under section 337-K, P.P.C. Would be made out automatically. He has, therefore, submitted that the impugned order of learned Additional Sessions Judge is contradictory in terms which is liable to be modified. He has submitted that the order being illegal and suffering with material irregularity may be modified. The last portion of the impugned order may be vacated and the trial Court be directed to issue process against the respondents.
6. ' On the other hand Mr. Mumtaz Ali Siddiqui learned counsel for the respondents Nos.1 to 6 has submitted that no offence has been made out even under section 348, P.P.C. And the question of commission of offence under section 337-K, P.P.C. Does not arise. He has further submitted that there will be no difference if the case is tried by the Court of Session or by Magistrate. Mr. Mumtaz Ali Siddiqui has further submitted that at the most the impugned order may be set aside and the respondents may be given an opportunity of being heard by the Trial Court and fresh order may be made.
7. ' Mr. Sher Muhammad Shar learned Asstt. A.-G. Has frankly conceded that if causing of hurt is added to the ingredients of offence under section 348, P.P.C, it will be automatically converted into an offence punishable under section 337-K, P.P.C. The learned Asstt. A.-G. Has further conceded that after coming to the conclusion that the offence under section 348, P.P.C. Was made out and the causing of hurt was also established, the trial Court ought to have brought the private complaint on record and should have issued process against the respondents.
8. ' I have carefully considered the contentions raised at the Bar and the impugned order. I am not persuaded to agree with the contention of Mr. Mumtaz Ali Siddiqui that there is no difference in trial by the Court of Session and trial by a Magistrate. Firstly, the most glaring difference is that punishment provided under section 337-K, P.P.C. Is more severe as compared to section 348, P.P.C.
9. The maximum punishment under section 348, P.P.C. Is three years while the maximum punishment provided under section 337-K, P.P.C. Is 10 years. The Sessions Judge is empowered to impose lesser punishment but a Magistrate is not empowered to impose higher punishment, which is within the competence of Sessions Court only. Moreover, if an aggrieved person has a right for processing of his case by a higher forum, it would not be in consonance with the scheme of law to compel him to pursue the remedy before the lower forum.
10. ' I am not persuaded to agree with the second contention of Mr. Mumtaz Ali Sidduqi that the impugned order may be set aside and the trial Court may be directed to reconsider the matter after hearing the respondents. The reason being that, first, when the trial Court has already arrived at the conclusion that offence under section 348, P.P.C. Is made out and has further arrived at the conclusion that the offence under sections 337-A and 337-F, P.P.C. Has also been made out and both the latter sections deal with the punishment for causing hurt, the logical conclusion would be that the causing of hurt stand established and as such the offence under section 337-K, P.P.C. Shall be made out. Secondly the case before the trial Court is at the stage of preliminary enquiry under section 202, Cr.P.C. And by now it is established principle of criminal administration of justice that the accused persons cannot be called before the trial Court at the stage of Preliminary Enquiry. It has been held in various judgments that calling of accused persons before the trial Court in the Preliminary Enquiry is an illegality and the trial Court has no jurisdiction to call the accused persons during the course of Preliminary Enquiry. The accused persons can be called upon to appear before the trial Court if after receiving a complaint and holding the Preliminary Enquiry, the trial Court comes to the conclusion that a prima facie case is made out for issuance of process and bringing the complaint on record. Thus, the acceptance of contention of Mr. Mumtaz Ali Sidduqi would amount to give a direction which is not warranted in law and would amount to committing an illegality on the part of the trial Court.
11. ' I am persuaded to agree with the contentions of the learned counsel for the applicant that the offence under section 337-K, P.P.C. Is made out and consequently the impugned order of learned III-Additional Sessions Judge, Mirpur Mathelo returning the private complaint for presentation before the Magistrate of First Class is hereby set aside and vacated. The trial Court is directed to bring the complaint on record and issue process against the respondents Nos.1 to .6. The revision application is allowed accordingly.
12. Revision .