Ahmad Saeed akhtar Vs The State etc

Form No:HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Case No: Crl.Misc.No.49393-M of 2026 Ahmad Saeed Akhtar. Vs. The State, etc.

S.No. of order/ Date of order/ Order with signatures of Judge, and that of parties or counsel, where necessary. Proceeding Proceeding

08.09.2026 Mr. Usman Riaz Gill, Advocate for the petitioner.

Through the instant petition, filed under Section 561-A of the Code of Criminal Procedure, 1898 (“Cr.P.C.” or “the Code”), the petitioner has called in question the order dated 02.06.2026, passed by the learned Judicial Magistrate, invested with powers under Section 30, Cr.P.C., Lahore (“trial Court”), in private complaint titled “Muhammad Nadir Ali v. Ahmed Khurshid, etc.”, and order dated 09.07.2026, passed by the learned Additional Sessions Judge, Lahore (“revisional Court”), whereby the criminal revision preferred against the former was dismissed.

2.The synoptical facts of the instant case, relevant for its adjudication yet shorn of unnecessary details, are that respondent No.2, Muhammad Nadir Ali (“the complainant”), instituted a private complaint against the petitioner and others for offences under Sections 420, 467, 468 and 471, PPC, which proceeded to trial before the learned trial Court. Vide order dated 02.06.2026, the learned trial Court, in exercise of its power to alter the charge under Section 227, Cr.P.C., added an offence under Section 498-A, PPC to the charge and continued with the trial. The petitioner assailed that order in revision, contending that the learned trial Court had ceased to be competent to try the case. The revision

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petition was dismissed on 09.07.2026. Hence, this petition.

3.Learned counsel for the petitioner contends that an offence under Section 498-A, PPC is shown in the eighth column of Schedule II to the Cr.P.C. as triable by the Court of Session. Upon its addition to the charge, the learned trial Court ceased to be competent to try the case and was bound to send it to the Court of Session. The continuation of the trial before the said Court is, therefore, without jurisdiction, and the learned revisional Court failed to advert to this aspect of the case.

4.Arguments heard. Record perused.

5.At the very outset, it may be noted that the petitioner has already availed the remedy of revision before the learned Additional Sessions Judge. The inherent jurisdiction of this Court under Section 561-A, Cr.P.C. is not a substitute for a second revision and is to be exercised sparingly, only to give effect to an order under the Code, to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The objection raised, however, goes to the competence of the learned trial Court itself. If well-founded, it would render the proceedings void. An objection of that nature strikes at the root of the trial and may be examined in the exercise of inherent jurisdiction. The petition is, therefore, taken up to that limited extent.

6.Before turning to the questions raised, it is instructive to recall briefly the classification of criminal Courts under the Code. Section 6, Cr.P.C. provides that, besides the High Courts and the Courts constituted under any other law, there shall be two classes of criminal Courts in Pakistan, namely, the Courts of Session and the Courts of Magistrates. Trials at first instance are

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ordinarily conducted by these two classes of Courts. The High Court, though competent under Section 28, Cr.P.C. to try any offence under the PPC, ordinarily exercises appellate, revisional, confirmatory and inherent jurisdiction. The Court of Session may, under Section 31(2), Cr.P.C., pass any sentence authorised by law, a sentence of death being subject to confirmation by the High Court. The Courts of Magistrates exercise original jurisdiction alone, and the sentences they may pass are circumscribed by Section 32, Cr.P.C.

7.Akin to the above, which of these Courts is to try a particular case is determined not by choice or convenience but by three distinct considerations under the Code. The first is jurisdiction over the subject-matter, that is, the class of offences a Court may try, which is governed by Sections 28 to 30, Cr.P.C. read with the eighth column of Schedule II. Its operation, and in particular the effect of Section 30, is examined in detail below. The second is the power to sentence: Section 32, Cr.P.C. fixes the maximum sentence a Magistrate may pass, and where a case appears to call for a sentence beyond those powers, the Code provides the mechanism of Sections 346 and 347, Cr.P.C., rather than an outright want of jurisdiction. The third is territorial jurisdiction under Sections 177 to 189, Cr.P.C., whereby an offence is ordinarily tried by a Court within whose local limits it was committed, subject to the provisions governing offences committed in more than one local area, continuing offences, and offences committed in the course of a journey or voyage. A trial held by a Court lacking competence over the offence itself is void and amenable to correction by this Court in its revisional or inherent jurisdiction.

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8.Against this backdrop, the instant petition raises an issue of recurring importance in the subordinate criminal Courts, one that calls for authoritative clarification by this Court: whether an offence shown in the eighth column of Schedule II as triable by the Court of Session lies beyond the competence of a Magistrate invested with powers under Section 30, Cr.P.C. For a just determination of this controversy, the following questions of law arise for consideration and are answered in turn:

(a)What is the scheme of the Code for determining the Court by which an offence is triable?

(b)Does the entry “Court of Session” in the eighth column of Schedule II oust the jurisdiction of a Magistrate invested under Section 30, Cr.P.C.?

(c)What are the limits of that jurisdiction, and what is the role of Sections 190(2), 346 and 347, Cr.P.C.?

(d)Was the learned Judicial Magistrate, Section 30, Lahore, competent to continue the trial after Section 498-A, PPC was added to the charge?

9.Adverting to the first question, the starting point is the scheme of the Code itself. Section 5(1), Cr.P.C. requires every offence under the PPC to be investigated, inquired into, tried and otherwise dealt with according to the Code. Section 5(2) applies the same rule to offences under other laws, subject to any enactment regulating the manner or place of investigation, inquiry or trial. The Code then classifies offences along several independent axes. The definitions in Section 4 and the columns of Schedule II record whether an offence is cognizable or non-cognizable, whether a summons or a warrant ordinarily issues, whether it is bailable or non-bailable, whether it is compoundable, and the punishment prescribed. The eighth column records the Court by which the offence is triable.

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10.These classifications serve distinct purposes and must not be conflated. Whether an offence is cognizable governs the powers of the police, whether it is bailable governs liberty pending trial or appeal, and whether it is compoundable governs settlement. None of these determines the forum of trial. The offence under Section 498-A, PPC, with which the instant petition is concerned, aptly illustrates the point. This Court in “Muhammad Ajmal v. Ex-Officio Justice of Peace/Additional Sessions Judge, Burewala” has held it to be non-cognizable under Schedule II. Consequently, information relating to its commission is to be dealt with under Section 155, Cr.P.C., and the police cannot investigate it without the order of a Magistrate. That classification, however, regulates only the manner in which a case under Section 498-A, PPC is set in motion. It has no bearing on the distinct question of which Court is competent to try it. That question falls to be answered by Chapter III of the Code, read with the eighth column of Schedule II, to which this Court now turns.

11.The foundational provision in this regard is Section 28, Cr.P.C., which provides that, subject to the other provisions of the Code, an offence under the PPC may be tried by the High Court, by the Court of Session, or by any other Court by which it is shown in the eighth column of Schedule II to be triable. Section 29 provides that an offence under any other law shall be tried by the Court mentioned in that law and, where none is mentioned, by the High Court or by a Court shown in the eighth column. The eighth column therefore states the ordinary forum. It is not exhaustive, because both Sections 28 and 29 open with the words “subject to the other provisions of this Code”.

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12.This brings this Court to the second question. Section 30, Cr.P.C. is one of the “other provisions” to which Sections 28 and 29 are subject. It opens with the words “Notwithstanding anything contained in section 28 or section 29” and authorises the investiture of a Magistrate of the first class with power to try “as a Magistrate all offences not punishable with death”. The non-obstante clause overrides Sections 28 and 29, and with them the forum shown in the eighth column of Schedule II. A non-obstante clause is a legislative device, ordinarily introduced by the words “notwithstanding anything contained in”, by which the legislature gives a provision overriding effect over the provisions or enactments named in it, so that in the event of conflict, the provision containing the clause prevails. Its function is to remove an impediment that the named provisions would otherwise present to the operation of the enacting part. Such a clause, however, is not a tool of unlimited reach, and its effect must be gathered from the words used, the provision in which it occurs, and the object the legislature sought to achieve. This well-settled principle was reiterated by the Honourable Supreme Court of Pakistan in “Syed Mushahid Shah and others v. Federal Investment Agency and others"1, and was further elucidated in “Muhammad Iltaf Khan v. Basheer and others”2. Applying this principle to Section 30, Cr.P.C., the legislative intent is evident from the express reference in its non-obstante clause to Sections 28 and 29 of the Code. For a Magistrate so invested, the eighth column ceases to be the measure of competence. The relevant inquiry is not whether that column names the Court of Session as the forum of trial, but whether the offence is punishable with death; if it is not, the Magistrate is

2017 SCMR 1218

2022 SCMR 356

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competent to try it. At the same time, the clause does not dispense with the remaining procedural requirements of the Code, nor does it override restrictions imposed by a special enactment. Section 30 thus enlarges the class of offences triable by a duly invested Magistrate, while preserving the overall statutory framework governing criminal proceedings.

13.This construction is not res integra. In “Ghulam Ahmad v. The State”3, an objection that an offence under Section 304, PPC (as it then stood) was triable exclusively by the Court of Session was repelled. It was held that Section 30 operates as an exception both to Section 28 and to Schedule II, so that a Magistrate so invested can try every offence not punishable with death. The Court observed that the measure of a Court’s competence is the punishment for the offence, not its nature. The Honourable Supreme Court of Pakistan in “Allah Wasaya v. Sikandar Hayat”4 has likewise observed, in a case under Section 336, PPC, which Schedule II shows as triable by the Court of Session, that a Magistrate invested under Section 30 may try all offences except those punishable with death. Following that decision, this Court held in “Mohsan Ali v. Additional Sessions Judge, Faisalabad”5 that the non- obstante clause in Section 30 excludes Section 28 and the eighth column, and that an offence under Section 367, PPC was triable by a Magistrate invested under Section 30. The same view was taken by this Court in “Abu Bakar v. The State”6, in respect of an offence punishable with imprisonment for life, and by the Islamabad High Court in “Rizwan Shabbir Kiyani v. The State”7. The PLD 1958 Peshawar 20

2012 SCMR 193

PLD 2013 Lahore 12

2006 PCr.LJ 659

2018 PCr.LJ 20

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words “as a Magistrate” in Section 30 mean that the trial proceeds under the procedure applicable to trials before Magistrates. The investiture does not convert the Magistrate into a Court of Session. It enlarges the class of offences he may try. The same construction has prevailed in India, where Section 30 of the Code of 1898 stood in materially the same terms until that Code was replaced by the Code of Criminal Procedure, 1973. A Constitution Bench of the Supreme Court of India in “Budhan Choudhry v. State of Bihar”8 held that, since Section 28 is expressly subject to the other provisions of the Code and Section 30 operates notwithstanding Sections 28 and 29, the Schedule must yield to Section 30. The effect of investiture, it held, is in substance to add the empowered Magistrate to the eighth column as an additional Court competent to try every offence not punishable with death. Where such a Magistrate considers that the maximum sentence he may pass will not meet the ends of justice, the course open to him lies under Section 347, in the exercise of his own judicial discretion.

14.The jurisdiction conferred by Section 30 is not, however, unlimited. It is bounded in two respects, which answer the third question. The first limit lies in Section 30 itself: it does not extend to any offence punishable with death. Such offences remain triable exclusively by the Court of Session, and Section 190(2), Cr.P.C. requires a Magistrate who takes cognizance of such an offence to send the case to that Court without recording any evidence. For a Magistrate invested under Section 30, therefore, an offence is “triable exclusively by a Court of Session” only where it is punishable with death or a law reserves it to that Court. As Ghulam Ahmad (supra) puts it, once the offence is not punishable with

AIR 1955 SC 191

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death, it ceases to be one triable exclusively by the Court of Session. A trial held beyond this limit is void, not merely irregular. Section 530(p), Cr.P.C. provides that if a Magistrate not empowered by law in that behalf tries an offender, his proceedings shall be void. In “State v. Mukhtar Ahmad”9, an Honourable Division Bench of this Court set aside the acquittal recorded by a learned Magistrate invested under Section 30 in a case sent up under Section 302, PPC, holding that he could only have transmitted the case under Section 190(2) and that Section 537, Cr.P.C. protects only judgments of Courts of competent jurisdiction. Section 530(p) was applied to similar effect in “The State v. Muhammad Ismail”10, where a Magistrate not invested under Section 30 had tried an offence shown in Schedule II as triable by the Court of Session. The nullity attaches to the proceeding for which the Magistrate was not empowered, not to distinct charges properly before him in the same trial, as held in “The Crown v. Ghulam Muhammad”11.

15.The second limit flows from Sections 5(2) and 29(1), Cr.P.C. Where a special law names the Court by which an offence is to be tried, or expressly excludes a Magistrate invested under Section 30, that law governs. Section 12 of the Anti-Terrorism Act, 1997, for instance, makes scheduled offences triable exclusively by an Anti- Terrorism Court, so that neither a Magistrate invested under Section 30 nor the ordinary Court of Session may try them. Where the special law is silent, the general scheme of Sections 29(2) and 30 applies.

16.Sections 346 and 347, Cr.P.C., on which the petitioner relies, do not detract from this position. Within the limits just described, they operate as a safety valve 1981 PCr.LJ 1335

1968 PCr.LJ 1092

PLD 1955 Sindh 431

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rather than a bar. Section 347, Cr.P.C. provides that if, in a trial before a Magistrate and before signing judgment, it appears to him at any stage that the case is one which ought to be tried by the Court of Session or the High Court, he shall send the case to that Court for trial. Section 346 makes provision for a case which, in the opinion of the Magistrate, ought to be tried or dealt with by some other Court. The operative words are “it appears to him”. The obligation arises only once the Magistrate forms that opinion on the case before him, for example where the gravity of the facts suggests that a sentence beyond his powers may be warranted. It is not triggered automatically by the entry in the eighth column of Schedule II where the Magistrate is otherwise competent under Section 30. Competence to try and the power to sentence are distinct. The limit on a Court’s power of awarding punishment does not affect its competence to try the case. All that the Magistrate cannot do is impose a sentence in excess of his powers. Under Section 32, Cr.P.C., a Magistrate specially empowered under Section 30 may not pass a sentence of imprisonment exceeding seven years, as this Court has also noted in “Hassan v. The State”12. That limit is addressed through Sections 346 and 347, not by denying jurisdiction at the outset. That is how Abu Bakar (supra) left the matter: the trial was restored to the Magistrate invested under Section 30, with liberty to act under Sections 346 and 347 if, before judgment, he concluded that he could not adequately sentence the accused.

17.The foregoing analysis finds its ultimate anchor in Article 175(2) of the Constitution of the Islamic Republic of Pakistan, which declares that no court shall have any jurisdiction save as is or may be conferred on it by the PLD 2017 Lahore 106

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Constitution or by or under any law. This provision embodies a foundational principle of our constitutional order: that jurisdiction is not inherent in a court by virtue of its existence, but is a creature of the Constitution and of statute alone. Three consequences flow from this principle. First, a court cannot assume a jurisdiction that the law has not conferred upon it, and proceedings undertaken without such jurisdiction are coram non judice and void. Secondly, jurisdiction cannot be created by the consent, acquiescence or waiver of the parties, nor can it be enlarged or curtailed by judicial inference beyond the terms of the conferring law. Thirdly, and conversely, where the law has conferred jurisdiction upon a court, that court is bound to exercise it and cannot decline to do so on the basis of a restrictive reading of other provisions. The competence of a criminal court to try an offence must, therefore, be traced to a specific legal source. As already discussed hereinabove, Section 30, Cr.P.C. is precisely such a source, as it vests a Magistrate specially invested thereunder with jurisdiction to try all offences not punishable with death. A Magistrate so invested who tries such an offence, therefore, acts within a competence expressly conferred “by or under any law” within the meaning of Article 175(2), notwithstanding that the eighth column of Schedule II shows the offence as triable by the Court of Session.

18.Applying these principles to the fourth question, the answer is clear. Section 498-A, PPC prescribes imprisonment of either description for a term which may extend to ten years but shall not be less than five years, or a fine of one million rupees, or both. It is not punishable with death, and no special law reserves it to the Court of Session. The eighth column of Schedule II shows it as

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triable by the Court of Session, but that entry yields to Section 30, Cr.P.C. It is not the petitioner’s case that the learned trial Court lacks investiture under Section 30. The offence therefore falls within the class of offences which the learned trial Court is competent to try. The same test already governed the case before the addition. The complaint included an offence under Section 467, PPC, which is punishable with imprisonment for life, and the learned trial Court’s competence to try it rested on Section 30 alone. The addition of Section 498-A, PPC, an offence carrying a lesser maximum, introduced no new jurisdictional question. This is said not because the petitioner’s earlier silence could confer jurisdiction, which it could not, but because the same statutory test answers both offences. Nor does the limit on sentencing power pose any impediment in the instant case. The minimum sentence of imprisonment prescribed for an offence under Section 498-A, PPC is five years, which falls within the ceiling of seven years fixed by Section 32, Cr.P.C. for a Magistrate invested under Section 30. The learned trial Court is, therefore, in a position, in the event of conviction, to pass the sentence which the law mandates. There is thus no incongruity between its competence to try the offence and its power to punish it.

19.In the same vein, the learned trial Court was not bound to send the case to the Court of Session under Section 347, Cr.P.C. It has formed no opinion that the case ought to be tried by that Court, and the mere addition of an offence shown in the eighth column as triable by the Court of Session does not compel such an opinion. Had the learned trial Court sent the case to the Court of Session solely on the strength of that entry, it would itself have committed an illegal exercise of jurisdiction, as this Court held in like circumstances in

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Mohsan Ali (supra). Its decision to retain the case involves no illegality, and the learned revisional Court rightly declined to interfere.

20.The legal position emerging from the foregoing discussion may be summarised as follows:

(i)The classification of an offence as cognizable, bailable or compoundable does not determine the forum of trial. The forum is governed by Sections 28 to 30, Cr.P.C., read with the eighth column of Schedule II.

(ii)The eighth column of Schedule II states the ordinary forum. It is subject to the other provisions of the Code, including Section 30.

(iii)A Magistrate invested under Section 30, Cr.P.C. may try any offence not punishable with death, notwithstanding that the eighth column shows it as triable by the Court of Session.

(iv)Offences punishable with death, and offences which a special law reserves to the Court of Session or withholds from a Magistrate invested under Section 30, are triable exclusively by the Court of Session or the Court so designated. A Magistrate taking cognizance of such an offence must send the case to that Court under Section 190(2), Cr.P.C., and a trial held by him is void under Section 530(p).

(v)Competence to try is distinct from the power to sentence. The limit on a Section 30 Magistrate’s sentencing power under Section 32 does not curtail the class of offences he may try. Where the minimum sentence prescribed for the offence lies within that limit, no question of incongruity arises at all.

(vi)Where a competent Magistrate considers, at any stage before judgment, that the case ought to be tried by the Court of Session, the remedy lies in Sections 346 and 347, Cr.P.C., which turn on the Magistrate’s own opinion on the case. Sending a case to the Court of Session solely because the eighth column names that Court is an illegal exercise of jurisdiction.

(vii)The addition of an offence to the charge during trial does not oust a Section 30 Magistrate’s

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jurisdiction unless the added offence falls within category (iv).

21.For the foregoing reasons, the learned Judicial Magistrate, Section 30, Lahore, remained competent to try the case after the addition of Section 498-A, PPC to the charge, and was under no obligation to send it to the Court of Session. The orders dated 02.06.2026 and 09.07.2026 suffer from no jurisdictional defect. This petition, being devoid of merit, is dismissed.

(MUHAMMAD JAWAD ZAFAR)

JUDGE

Approved for Reporting.

JUDGE

This petition is announced on 08.09.2026 whereas completed and signed on 07.10.2026.

Ejaz*