Abdul Hakeem Khan vs State.

2014 M L D 300

[Peshawar]

Before Abdul Latif Khan, J

ABDUL HAKEEM KHAN---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Miscellaneous Quashment Petition No.158-D of 2012, decided on 24th June, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 190(2), 265-D & Chap. XXII (Ss.261 to 265)---Penal Code (XLV of 1860), Ss.324 & 34---Attempt to commit qatl-e-amd, common intention---Petition for quashment of order---Petitioner had prayed for quashing of order of the Sessions Judge, vide which registration of case under S.324/34, P.P.C. was held doubtful; and record was returned to the petitioner for applying correct section of law---Present case was forwarded by the Magistrate in compliance to provisions of S.190(2), Cr.P.C. to the Court of Session under Chap. XXII, Cr.P.C.---If after perusing the Police report, complaint, and all other documents and statements filed by the prosecution, the Court of Session was of the opinion that there was ground for proceeding with the trial of accused; the court would frame in writing a charge against accused; but in no case the Court of Session was empowered to observe registration of F.I.R. as doubtful; without the aid of any evidence, or legal provision---No power was vested in the Court of Session to return the record to the prosecution for applying correct section of law; and then sending it to the proper court for trial---Impugned order was alien to the procedure prescribed under Chap. XXII, Cr.P.C. for the trial before the Court of Session---Court under S.265-D, Cr.P.C. was obliged to peruse all those reports, documents and statements; and then form an opinion at the time of framing charge, which was lacking in the present case---Impugned order passed in violation of procedure and law, was quashed, with direction to Sessions Judge to proceed with the case in accordance with procedure given in Chap. XXII, Cr.P.C.

Muhammad Asghar Khan Kundi for Petitioner.

Jehan Zeb Ahmed Chughtai and Sarwar Khan Kundi for Respondents Nos. 3 and 4.

Date of hearing: 24th June, 2013.

JUDGMENT

ABDUL LATIF KHAN, J.---Through the instant petition under section 561-A, Cr.P.C, the petitioner prays for quashment of order dated 5-5-2012 of the learned Sessions Judge, Tank vide which the registration of case under sections 324/34, P.P.C. was held doubtful and record was returned to the prosecution for applying correct section of law.

2.Learned counsel for the petitioner contended that the impugned order has been passed in excess of jurisdiction by the Court below. He contended that the report of the petitioner culminated into F.I.R. after lengthy process of inquiry under section 156(3) Cr.P.C. and suggestion of registration of case thereupon by the District Prosecutor and the order passed by learned Justice of Peace under section 22-A, Cr.P.C. later on pre-arrest bail confirmed by the learned Sessions Judge, Tank was recalled by this Court on 18-4-2012. He contended that on completion of investigation, challan was submitted in the Court of Session Judge, however, vide impugned order, the Court below returned the case to the prosecution for applying correct section which is against the mandate of law.

3.As against that, the learned counsel for the respondents vehemently supported the impugned order, however, the learned State counsel observed otherwise and contended that the impugned order is in accordance with law.

4.I gave my deep thought to the arguments of learned counsel for the parties and perused the record with their valuable assistance.

5.Section 190, Cr.P.C. provides the procedure for the Magistrate taking cognizance of the offence. Subsection (2) of section 190, Cr.P.C. provides that the Magistrate after cognizance under subsection (1) of an offence triable exclusively by the Court of Sessions shall, without recording any evidence, send the case to Court of Session for trial. The instant case has been forwarded by the Magistrate in compliance to the above referred provision to the Court of Sessions who, under chapter XXII has to deal with the trials to be conducted by the Public Prosecutor before the Court of Sessions and it is mandatory for the Court to strictly follow the procedure laid down in the said chapter. Under section 265(c), Cr.P.C., copies of the documents mentioned therein are to be supplied to the accused free of cost, then charge has to be framed if, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of the opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused, but in no case the Court of Sessions is empowered to observe registration of F.I.R. as doubtful without the aid of any evidence or legal provisions and at the same time, no power is vested in the Curt of Sessions to return the record to the prosecution for applying correct section of law and then sending it to the proper Court for trial. The impugned order is alien to the procedure prescribed under the chapter referred above for the trial before the Court of Sessions. It was obligatory upon the Court under section 265-D, Cr.P.C. to peruse all those reports, documents and statements and then form an opinion at the time of framing charge which is lacking in the

instant case.

6.In view of the above, this petition is accepted, the impugned order dated 5-5-2012 being passed in violation of procedure, law beside, is hereby quashed and the Sessions Judge, Tank is directed to proceed with the case in accordance with the procedure given in Chapter-XXII referred above.

HBT/459/P Petition accepted.