' Shaukat Hussain, petitioner, was named as an accused in a case F.I.R. No,123 of 1993 registered on 21-7-1993 at Police Station Fazal Pur, District Rajanpur, for offences under section 337-H, P.P.C. And subsequently during the investigation section 337-H was deleted and substituted for section 319, P.P.C.
2. After the completion of the investigation a report under section 173, Cr.P.C./Challan was submitted before the Court on 2-8-1993. A perusal of the same shows that the challan was also subinitted under section 319, P.P.C.
3. After submission of challan the learned Magistrate Section 30 framed the charge against the accused on 12-9-1994 under section 319, P.P.C. (Qatl-e-Khata). After framing of charge, the learned Magistrate proceeded with the trial and recorded two formal P.Ws.
4. On 16-6-2001, the learned Magistrate referred the case to the Court of Sessions, as according to him he had no jurisdiction to try this case. On 19-6-2001, the learned Sessions Judge entrusted the case to A Razaq Nawaz Khan, learned Additional Sessions Judge-II, Rajanpur. The learned.
Additional Sessions Judge was pleased to frame charge under section 302, P.P.C. Against the petitioner on 30-6-2001 and proceeded with the case.
5. On 7-10-2001 Syed Ghulam Abbas, D.D.A. Moved an application for sending the case to the Court of Magistrate Section 30 and the same was dismissed by the learned Additional Sessions Judge vide his order, dated 8-8-2001.
6. Feeling aggrieved, the petitioner has preferred the instant petition under section 561-A, Cr.P.C. At the request of the learned counsel for the petitioner the present petition is converted into a revision petition. Now it would be treated as revision petition.
7. The prosecution story is that on 20-7-1993 Sher Muhammad, Inspector/S.H.O., complainant of the case who was present in his room at police station when he heard a fire at 9-00 p.m. He alongwith Fateh Muhammad, S.-I. Came out of the room and went to the residential room of Moharrir and saw that Habib Ullah, H.C./Moharrir, Ashiq Hussain, Constable, Shaukat Hussain, Constable who was in uniform and was having a semi-automatic rifle with him and a Lady Constable, Naziran Gul in uniform were present in the room. On query about the fire, Habib Ullah, Head Constable/Moharrir informed the complainant that Shaukat Hussain, Constable was on watching duty at 9-00 p.m.
And he was given Rifle No,20 PR which was automatic alongwith ten bullets. It was further stated by Habibullah that he alongwith Ashiq Hussain, Naib-Moharrir and Naziran Gul, Lady Constable were present in the room to have dinner when Shaukat Hussain, Constabl: also reached there and he started loading his rifle. In the process, due to the negligence of Shaukat Hussain, Constable, the rifle went off and the bullet hit on the left shoulder of Lady Constable. Resultantly, Naziran Gul, Lady Constable was seriously wounded. It was further stated that it happened due to the negligence and carelessness of Shaukat Hussain, Constable and, therefore, the case was registered under section 337-H, P.P.C. Unfortunately, Naziran Gul, Lady Constable, could not survive and after her death section 337-H, P.P.C. Was deleted and substituted by section 319, P.P.C. (Qatl-e-Khata).
8. I have heard the learned counsel for the parties and gone through the record. The learned Courts below have in fact failed to appreciate the fact that section 319, P.P.C. Was an independent offence.
It has no nexus with section 302, P.P.C. Section 302, P.P.C. Deals with the cases relating to. Qatl-e- Amd (
9. {{URDU TEXT}} ) while section 319, P.P.C. With the cases relating to Qatl-e-Khata ({{URDU TEXT}}as defined in section 318, P. P. C .
10. A perusal of section 30, Cr.P.C. Makes it very clear that a Magistrate, who has enhanced powers to hear cases under section 30 would be competent to try all the cases which were not punishable with death.
10. It is also observed that the learned Additional Sessions Judge had wrongly charged the petitioner under section 302, P.P.C. As there was no material, available to attract the provisions of section 302, P.P.C.
11. The learned State Counsel, present in Court has no cavil about this legal proposition.
12. In these circumstances, I accept this revision petition and set aside the orders, dated 16-6-2001, 19-6-2001 and 8-8-2001 passed by the learned Magistrate Section 30, learned Sessions Judge and the learned Additional Sessions Judge, respectively. The case would be remanded back to the Judicial Magistrate having the powers of section 30, Cr.P.C. Who would proceed with the case from the stage prior to 16-6-2001.