Through this criminal revision under section 439, Cr.P.C. The petitioners have challenged the order dated 20-7-2000 passed by the learned Sessions Judge, Multan by which he has accepted the transfer application filed by respondent No.2 complainant in case F.I.R. No. 106 dated 10-3-1999 offence under sections 337-F(ii), 337-F(vi), 334, 324, 148 and 149, P.P.C. Registered at Police Station Sadar, Jalalpur Pirwala, District Multan and after withdrawing it from the Court of learned Judicial Magistrate has entrusted to the Court of learned Additional Sessions Judge for trial.
2. Brief facts of the case are that respondent No.2 complainant after the submission of the report under section 173, Cr.P.C. Before learned Judicial Magistrate with powers under section 30, Cr.P.C.
Submitted an application for the transfer of the case under section 528, Cr.P.C. To the Court of learned Sessions Judge as according to him the offences under sections 334 and 336 are punishable with Qisas, which punishment cannot be awarded by the learned Judicial Magistrate.
After hearing the parties the impugned order has been passed.
3. Learned counsel for the petitioners contends that the impugned order is illegal and unlawful as has been passed without affording an opportunity of hearing to the petitioner. It is also contended that the Magistrate Ist Class or the Judicial Magistrate duly empowered under section 30, Cr.P.C.
Has the powers to try the cases not punishable with death or life imprisonment hence the trial was being rightly conducted by the Magistrate empowered under section 30, Cr.P.C. And the learned Sessions Judge has illegally passed the impugned order which is liable to be set aside as according to him provisions of section 28, Cr.P.C. Are dependent upon section 30 of the Criminal Procedure Code which provides the trial of criminal cases not punishable with death by the Magistrate empowered under this section. It is also contended that the petitioners who are accused in the above-said case will be deprived of right of appeal in case they are sentenced to 4 years or less before the learned Sessions Court and will have to move the High Court directly.
4. On the other hand learned counsel for respondent No.2 and the State have opposed this petition on the ground that the offences with which the petitioners/accused are to be charged are also punishable with Qisas, which can only be enforced by the Court of Session, hence the impugned order is sustainable. It is also contended that even otherwise .The accused have no vested right to claim trial by a specific Court, hence this petition is liable to be dismissed.
5. I have heard the learned counsel for the parties and also perused the impugned order. Section 28 of the Criminal Procedure Code deals with the Courts of trial for the offences under Penal Code as shown in the eighth column of the Second Schedule, according to which offences under sections 324, 334 and 336, P.P.C. Are triable by the Court of Session. The argument of the learned counsel for the petitioner is that under section 30, Cr.P.C. The offences not punishable with death and up to transportation for life can be tried by a Magistrate duly empowered under said section.
This argument is not available in the I present case as the offences under sections 334 and 336, P.P.C. Are punishable with Qisas, or Arsh and imprisonment of either description for 10 years each and the punishment of Qisas can be enforced by Court of Session. Moreover, in case the trial is conducted by the Judicial Magistrate and on conclusion thereof it comes to the conclusion that the accused are to be awarded sentence which such Court is not empowered to award, even then the case will have to be I transferred to the Court of Session. In these circumstances I am of the view that learned Sessions Judge has rightly withdrawn the case from the Court of learned Judicial Magistrate and entrusted the same to the Court of learned Additional Sessions Judge. I do not find any illegality in the impugned order. Even otherwise the accused cannot be given a right of Court of his choice for his trial of the offences. As far as the argument that the petitioners/accused will loose one forum of appeal is also repelled as the accused, if are convicted by the learned Sessions Court can file appeal before this Court and that will be heard and decided on the same principles available to the accused in the Sessions Court as Appellate Court. In such circumstances no prejudice is likely to cause to the petitioners by the transfer of the trial. This revision petition having no merits is dismissed.
6. As revision petition remained pending decision for a long period and trial was stayed, the learned trial Court is directed to conclude the trial of the above said case within 3 months from the receipt of this order.