' The facts relevant to this order are that on 20-12-2001 Mubarak Hussain resident of Korangi lodged his F.I.R. With Korangi Police alleging Therein that his tenant Ashraf and his brother's wife Mst.
Mumtaz had kidnapped his daughter Saima aged 13/14 years on 12-11-2001 with intention to subject her to Zina. During investigation Ashraf and Saima were taken into custody on 29-7-2002 at Bus Stop Korangi. At that time Saima had six months' pregnancy. On 6-8-2002 she was produced before 7th Judicial Magistrate (East), Karachi for recording her statement under section 164, Cr.P.C.
In her statement she alleged that she was forcibly kidnapped by Ashraf and then kept at different places and subjected to rape. After completing the investigation the challan/charge-sheet was submitted before 4th Judicial Magistrate (East), Karachi mentioning therein that the girl had alleged in her statement under section 164, Cr.P.C. That accused Ashraf had forcibly kidnapped her and subjected to Zina. It was also mentioned in the report/chargesheet that the investigation had revealed that while being with accused Ashraf the girl had attempted to suicide due to his excesses.
2. Saima was among the witnesses named in the charge-sheet submitted under section 169, Cr.P.C. For the offence under section 363, P.P.C. And under section 10(2) and (3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979, exclusively triable by the Court of Session. However, the Judicial Magistrate passed order dated 19-8-2002. The operative part whereof is reproduced below:-- "As lady accused remained with co-accused Ashraf for about 9 months and during the highly period she travelled from Karachi to Lahore through public transport and remained in Lahore about three months and also remained admitted in hospital at Lahore and again came back at Karachi and lady accused Saima remained with accused Ashraf in Sher Shah Area about five months and then she alongwith co-accused came at Korangi Area where both accused were arrested when they were going to conduct Nikah but she has not complained to any person during this period.
Admittedly lady accused Saima is pregnant and carrying child of about seven months, hence in view of the whole facts I think the case is made out under section 10(2), Zina Ordinance and accordingly case is registered against the accused person."
3. The order was impugned through revision by Saima but her revision was dismissed on 20-11- 2002 by the learned 4th Additional Sessions Judge, Karachi (East). That order has been attacked through present miscellaneous application under section 561-A, Cr.P.C. On the ground that the orders passed by the learned two Courts below are abuse of the process of law and Court.
4. Arguments of applicant's learned Advocate and the State Counsel were heard.
5. The wording of the order passed by the 4th Judicial Magistrate gives impression that Saima was one of the accused in the case but, as mentioned above, neither she was nominated in the F.I.R. As accused nor she was among the accused in the report under section 169, Cr.P.C. It is the order of the Judicial Magistrate by which she has been joined as accused before sending the case to the Court of Session for trial.
' Although the wording of the order is that "I think the case is made out under section 10(2), Zina Ordinance and accordingly case is registered against the accused person", but both of the learned advocates have stated that she had been joined as accused and the order of the learned Additional Sessions Judge also gives clear impression that she has been joined as accused and sent for trial together with Ashraf and Mst. Mumtaz.
6. Applicant's learned Advocate contended that according to F.I.R. Saima was kidnapped and the investigation also revealed that she was not happy and had attempted to suicide due to excesses of Ashraf and also in the challan she was named as one of the witnesses the order passed by the learned Judicial Magistrate was abuse of the process of Court as he had no jurisdiction to take decision about the truthfulness and falsehood of the evidence of the main prosecution witnesses.
That the Judicial Magistrate could take limited cognizance in the cases for offences exclusively triable by the Court of Session. His authority was limited only to the application of mind as to whether the report was disclosing commission of offence triable exclusively by the Court of Session.
On reaching the conclusion that the report was showing the commission of offence triable exclusively by the Court of Session, he had to send the case immediately to the Sessions Court. He had no jurisdiction to sit over the matter and sift the evidence of any of the witnesses for the purpose of deciding the question of his/her involvement in the crime.
7. The learned State Counsel has supported the application expressing that he was feeling it difficult to defend the impugned order.
8. It is admitted position that Ashraf and his co-accused Mst. Mumtaz were sent for trial for the offences under section 363, P.P.C. And under section 10(2) and (3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which are triable by the Court of Session exclusively. It is not disputed that the girl Saima was not nominated as accused in the F.I.R. Nor she was challaned as accused. On the contrary, it was clearly mentioned in the report under section 169, Cr.P.C. That she, due to excess on the part of Ashraf, had attempted to suicide. In her statement under section 164, Cr.P.C.
She alleged that she had been forcibly kidnapped and subjected to Zina. In presence of all that sifting the evidence by the learned Judicial Magistrate and drawing the conclusion that the statement of Saima was false and she was consenting party to the offence of Zina, and passing order that she be tried together with Ashraf was without jurisdiction.
9. Even otherwise it is the Sessions Court which takes decision' about presence of sufficient grounds for proceedings against anyone for the offence triable by that Court exclusively. Simple instance in that respect is of the direct complaint in respect of the offence triable exclusively by the Sessions Court. When such complaint is presented before the Magistrate he has limited jurisdiction for taking cognizance only to the extent of application of the mind as to whether the contents of the complaint disclose the commission of the offence triable by the Court of Session exclusively. As soon as he comes to the conclusion that the contents of the complaint do disclose the offence triable exclusively by the Court of Session he has to stop there and send the complaint to the Court of Session which can only pass the order for trial of any person for such offence. Although in some cases the Sessions Court may direct the Magistrate to hold preliminary inquiry even then he cannot bring the case on regular file against any person directing his trial.
10. The result of above discussion is that the order passed by the learned Judicial Magistrate against the applicant was without jurisdiction and void and as such it was an abuse of the process of law and Court. The learned Additional Sessions Judge, Karachi (East) acted illegally by maintaining such an order. Consequently, both of the orders are quashed. With this order the application is accepted.