جب تک میڈیکل ایکسپرٹ کے بیان پر وکیل دفاع کی طرف سے جرح نہ کی جائے اس وقت اس بیان کی اہمیت نہیں ہے2018 S C M R 141
Criminal Procedure Code (V of 1898)---
----S. 193---Qanun-e-Shahadat (10 of 1984), Arts. 132, 133 & 161---Penal Code (XLV of 1860), S. 302---Transfer of case by Magistrate to Court of Session--- Evidence, recording of---Procedure---Accused persons were alleged to have inflicted injuries on the deceased---Deceased remained under treatment and died almost one year after the occurrence---Judicial Magistrate before commencement of trial and recording prosecution evidence, recorded the statement of the medical expert, whose name was mentioned in the challan---Examination-in-chief of said medical expert was recorded, wherein he opined that keeping in view the operation notes of the neuro-surgeon, X-ray and CT-scan, the injuries caused to the deceased were sufficient to cause his death in ordinary course of life---No right of cross-examination of medical expert was given to the accused persons and the Magistrate came to the conclusion that prima facie offence under S. 302, P.P.C. was attracted and being exclusively triable by the Court of Session, the case file was forwarded to the Sessions Court under S. 193, Cr.P.C.---Legality---Mode and manner adopted by the Magistrate in examining the medical officer on the point of cause of death of the deceased, was completely alien to the law of evidence and Criminal Procedure Code, 1898---After commencement of trial the Magistrate could not record the statement of medical expert in the manner he had adopted---Under Art. 161 of the Qanun-e-Shahadat, 1984 the Court had unlimited powers to put questions in order to discover or to obtain proper proof of relevant facts however, such power was directed only to achieve that object alone enabling the court to reach at a just conclusion---Such power exclusively related to the phase when the trial had already commenced and the witness(es) were examined by the party calling it, and cross-examined by the adverse party---In the present case, however, the Magistrate wrongfully assumed such jurisdiction at a pre-trial stage and only recorded examination-in-chief of the medical expert and then questions were put to him by the Court without adopting the procedure as essentially required by Arts. 132 & 133 of the Qanun-e-Shahadat, 1984---Impugned order of the Magistrate was set aside and the case was remanded to the trial Magistrate to hold trial in accordance with law.
Muhammad Sharif Bhatti, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.
Complainant in person.
M. Jaffar, DPG, Punjab for the State.
Date of hearing: 2nd November, 2017.
MUHAMMAD AJMAL VS State2018 S C M R 141[Supreme Court of Pakistan]Present: Mushir Alam and Dost Muhammad Khan, JJMUHAMMAD AJMAL and others---PetitionersVersusThe STATE and another---RespondentsCriminal Petition No. 765 of 2016, decided on 02/11/2017.(On appeal from the judgment dated 19.5.2016 passed by the Lahore High Court, Bahawalpur Bench in Crl. Misc. No. 15-Q of 2015-BWP)
JUDGMENT
DOST MUHAMMAD KHAN, J.---
Leave to appeal has been sought against the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur dated 19.5.2016 whereby the petition filed under section 561-A, Cr.P.C. was dismissed.
We have heard the learned counsel for the petitioner and the learned DPG, Punjab, Mr. M. Jaffar besides the complainant in person.
Brief Facts:
The petitioners were nominated in Crime No. 36/2008 registered by Police Station "Saddar" District Bahawalpur on 2.2.2008 for offences under sections 337-A/34, P.P.C. The allegations against the petitioners are that Khadim Hussain, complainant along with his deceased brother Nazeer Ahmad and one Jan Muhammad were ploughing their land in village "Phundah" on 21.1.2008 when the petitioners came there duly armed with clubs/sticks and commanded them to stop ploughing the land with tractor but they refused. As a result of that the complainant, the deceased and the third one were brought down from the tractor. Atta Muhammad co-accused inflicted club blow on the head of the deceased. who fell down while Shah Muhammad and Altaf accused inflicted stick blows on the left and the right hand of Jan Muhammad who also fell down whereafter rest of the accused also gave thrashings with clubs to Nazeer Ahmad and Jan Muhammad at different parts of their bodies and then they fled away. Both the injured were taken to BVH after rescue force reached the spot on a phone call. The occurrence was reported late in the evening at 5.15 hours. However, after receiving Medico-legal Report, on the next day the case was registered as above.
2.Nazeer Ahmad injured was reportedly operated upon by the Neuro Surgeon and the MLO opined that offences under sections 324/ 337, 337-A, 337(iii)(iv)(vi) and 337-L(ii), P.P.C. are attracted to the case. Thus, these offences were added to the FIR.
3.It has been alleged that deceased Nazeer Ahmad remained under treatment, however, subsequently he died between the night of 23/24 January, 2009 i.e. almost one year of the occurrence.
4.The investigating agency, at the conclusion of the investigation submitted complete "Challan" before the Special Judicial Magistrate empowered under sections 30 and 34 of Cr.P.C.
5.In the meanwhile the complainant filed a private complaint, which was dismissed by the learned Additional Sessions Judge, Bahawalpur vide order dated 30.4.2014 on the ground that State case was sub judice before the area Magistrate and the injuries caused to the deceased were triable by the said court and at the conclusion of the trial, if the trial court of the Magistrate after appraisal of evidence decided that cause of death of Nazeer Ahamd deceased was due to injury sustained by him then it may refer the case for trial to the Sessions Court.
Section 347, Cr.P.C. reads as under:-
"347. Procedure when, after commencement of trial, Magistrate finds case should be tried by Court of Session or High Court. If in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, he shall send the case to the Court of Session or High Court, for trial."
6.Aggrieved by the said order, the complainant filed Revision Petition No.156/2014, however, the same was withdrawn on 15.9.2014 having not been pressed by the learned counsel for the complainant who wanted to move an application before the Judicial Magistrate where the trial of the above case was pending disposal.
7.The Special Magistrate on 16.12.2014 before recording the prosecution evidence and without due process of law to commence the trial, decided to record the statement of the medical expert/MLO., whose name was mentioned in the "Challan" under section 173, Cr.P.C. One doctor Hanif, SMO, BVH was examined but only his examination-in-chief was recorded, however, to the court question the doctor replied that keeping in view the surgical notes/operation notes of the Neuro Surgeon, Surgery Ward, X-Ray and CT-Scan from radiology department, the injury was sufficient to cause death of Nazeer Ahmad in ordinary course of life.
8.After recording the incomplete statement without giving right of cross-examination to the petitioners/accused, the Magistrate jumped at the conclusion that prima facie offence under section 302, P.P.C. was attracted and being exclusively triable by the Court of Session. Thus, the case file was forwarded to the Sessions Court under section 193, Cr.P.C. on 18.12.2014. The learned Sessions Judge entrusted the case to the Additional Session Judge who immediately took cognizance of the case; summoned the accused and supplied them with copies under section 265-C, Cr.P.C.
9.The entire controversy is with regard to the abdicating of jurisdiction and illegal or wrong assumption of jurisdiction by one court and the other. Earlier the learned Additional Sessions Judge, as has been mentioned in earlier para, had passed a speaking and fully justifiable order, but that was conveniently ignored by the area Magistrate albeit that was a binding order and had attained finality because the petition filed against that order before the Lahore High Court, Bahawalpur Bench was withdrawn by the complainant as stated above.
10.Our criminal justice system recognizes and has fully explained three different phases of criminal justice. In cognizable offences, the accused is for the first time charged by the complainant/victim, as the case may be, by lodging an FIR. At this stage, except with regard to the matter of remand of accused and obtaining permission for further investigation from the area Magistrate, no court has the authority to interfere in the course of investigation directing the investigating agency to proceed in a particular way or not to proceed in that way because that is the domain of the local police. Similarly Justices of Peace have been empowered to give some directions to the investigating agency if complained against to do what is required by law to do and also to direct transfer of investigation from one investigating agency to other for reasons to be recorded.
11.The second phase is inquiry, summarily held by the Magistrate under section 190, Cr.P.C. The Magistrate by making scrutiny of the materials collected by the investigating agency, may agree with the opinion of the police or may disagree for the reasons to be recorded, and may or may not take cognizance of the case submitted to it by the police/investigating agency, however, in both the situations the Magistrate has to record the reasons for taking cognizance if he is competent to try the accused or to refuse to take cognizance and discharge the accused from the bail bonds and cancel the FIR. At this stage, the exclusive domain is that of the Magistrate because section 190, Cr.P.C. has invested him with exclusive power to deal with the case but in a judicial manner. During this process neither the investigating agency nor any other court, even superior in rank, has got any authority to interfere with such process. If the case is exclusively triable by the Sessions Court then, it has to forward the case under section 193, Cr.P.C. to the court of Session for trial. This is of-course an administrative action of the Magistrate and is not revisable by the next court in rank or the High Court in revisional jurisdiction as has already been held by this Court.
12.The next stage is the trial stage. Here too, if the case is forwarded to the Sessions Court for trial then, it is for the Presiding Judge of the Sessions Court to apply his judicial mind to the entire facts and material on record for taking cognizance or to refuse to take cognizance if no case is made out or in its opinion the case is one which shall be tried by any other court subordinate to it or any special court, constituted under the special law. However, if it takes cognizance and issues process against the accused then, no other court higher in rank has any jurisdiction or authority to interfere with such process at this stage unless in the course of taking cognizance the order passed suffers from jurisdictional defect or illegality of incurable nature.
13.Keeping in view the above division of authority and powers between different agencies/courts i.e. investigating agency, inquiry magistrate, exercising powers under section 190 or under section 193, Cr.P.C. and the competent trial court while taking cognizance or refusing to take cognizance or independent of each other, none can control the action of the other, except in very rare cases where patent illegality is committed and any action taken by the other agency/court is in disregard of the statutory provision, rendering the process nullity in the eye of law.
14.This division of authority and power is with the object so that there shall be no unnecessary interference by one sub-organ of the same system in the affairs of the other sub-organ and all the three phases divide and demarcate the line of jurisdiction and authority of the three organs, referred to above. Therefore, any interference by an agency/court into the authority of the other, would certainly create chaos in usurping the jurisdiction of other agency/court in a manner not authorized by the law.
15.In the case of Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Interior Division, Islamabad and 2 others (1994 SCMR 2142) this Court has held as follows:
"That the powers of judicial review is a great weapon in the hands of the Judges of the superior courts however, it cannot and shall not be used unnecessarily to interfere in the functions, affairs and authority of the investigating agency at the initial stage, unless it is essentially required to be corrected, in case it violates a mandatory provision of law and proceeds in an illegal manner in the course of investigation."
The same principle would apply vigorously when the Magistrate is considering to take or not to take cognizance under section 190, Cr.P.C. and similarly, the High Court cannot interfere under Article 199 of the Constitution or to say under section 561-A, Cr.P.C. if the Sessions Court decides in a proper and legal manner to take cognizance or refuse to take cognizance unless it is directed to occasion the failure of justice or same is otherwise violative of any mandatory provision of Cr.P.C. or any other law applicable.
16.Similar view was taken by this Court in the case of Malik Shaukat Ali Dogar v. Ghulam Qasim Khan Khakwani and others (PLD 1994 SC 281) thus, when the statutory law has objectively placed the powers and authority of the investigating agency, the inquiry Magistrate and that of the Trial Court in three separate compartments, thus, none has the authority to unduly usurp the jurisdiction of the other authority under the scheme of law. Reliance in this regard may also be placed on the view held by this Court in the case of Muhammad Sharif v. The State (1997 SCMR 304).
17.In the present case, the Court of Magistrate has muddled up the matter because after commencement of trial it could not record the statement of medical expert in the manner and fashion it has adopted.
18.The law of evidence has essentially provided the manner and mode of recording statement of witnesses which cannot be bypassed under any circumstance, otherwise the statement recorded in disregard of the mandatory provision of law would become inadmissible and of no legal worth to be relied upon. In this regard, Chapter 10 of the Qanun-e-Shahadat Order, 1984 deals with the production and mode of examination of witnesses. Article 132 of the Act defines the examination-in-chief of a witness, the cross-examination and what is re-examination and under what circumstances the latter one has to be allowed, while the provision of Article 133 in mandatory words provides as follows:-
"Article 133. Order of examinations. (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
(2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross-examinations and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter."
19.True, that under Article 161 of the Qanun-e-Shahadat Order the Court has unlimited powers to put question in order to discover or to obtain proper proof of relevant facts however, it shall be directed only to achieve that object alone enabling the court to reach at a just conclusion but such questions shall be carefully put to a witness in such a manner so it may not give an impression to one or the other party that the Court is inclined in favour of the Defence or the Prosecution and one party or the other in a civil matter, however, this stage exclusively relates to the phase when the trial has already commenced and the witness(es) are examined by the party calling it, cross-examined by the adverse party. At this stage alone, the provision of Article 161 can be pressed into service. However, in the present case, the Magistrate wrongfully assumed such jurisdiction at a pre-trial stage and in that course it only recorded examination-in-chief of the witnesses and then questions were put to him by the Court without adopting the procedure as essentially required by Articles 132 and 133 of the Qanun-e-Shahadat Order. No incomplete statement shall be made part of any judicial proceedings like it was made by the Magistrate at his whims, more so, it was in utter disregard of the earlier order of the revisional court/Additional Sessions Judge, who held a correct view that let the trial proceed before the Magistrate and after recording evidence if it is of the opinion that on the basis of duly recorded evidence a different offence was constituted exclusively triable by the Sessions Court then, it could competently forward the case to the Sessions Court under section 193, Cr.P.C. The laid down procedure under no circumstances could be circumvented in the mode and manner adopted by it.
It may also be kept in mind that the provision of section 347, Cr.P.C. has been enacted to meet an eventuality arising during the trial before the Magistrate empowered under sections 30 and 34, Cr.P.C. where it could not pass a sentence for the offence punishable with more than seven years' R.I. Disregarding the earlier judgment of the revisional court and the mandatory provision of the Cr.P.C. the Magistrate by adopting a short circuit, committed serious error of jurisdiction. This error of law and jurisdiction committed by the Court of Magistrate was conveniently ignored by the learned Judge in Chambers of the High Court through the impugned judgment.
20.When were confronted with the above legal position, the learned DPG and the complainant were unable to controvert the same in any manner and conceded on the point of law.
21.It may also be pointed out that the successor Additional Sessions Judge while passing the impugned order dated 23.4.2015 has fallen into patent error, holding that the earlier judgment of the Additional Sessions Judge, Bahawalpur has not debarred the Magistrate to add the section of law i.e. section 302, P.P.C. because the then Additional Sessions Judge had rightly held that the Magistrate may exercise such powers after holding the trial and recording evidence. The mode and manner adopted by the Magistrate examining the senior medical officer on the point of cause of death of the deceased, is completely alien to the Law of Evidence and Code of Criminal Procedure.
22.The Special Magistrate, empowered under sections 30 and 34, Cr.P.C., has the jurisdiction to try all offences not punishable with death and the bar is only placed on its jurisdiction to award a sentence of more than seven years' R.I. with fine. The powers under section 347, Cr.P.C. can only be exercised, if after recording evidence in the above manner, it is of the opinion that a different offence is constituted triable by Sessions Court, then, of-course, the case could be forwarded to the Sessions Court for consideration.
Judged and considered from all angles, both legal and factual, we feel no hesitation to hold that the impugned judgments are not tenable in law, rather being in disregard of the mandatory provision of law. Accordingly, all the impugned judgments/orders are set aside and the case is remanded to the Trial Magistrate to hold trial in the manner, explained above.
Petition is converted into appeal and the same is allowed in the above terms.
MWA/M-55/SC Appeal allowed.
Criminal Procedure Code (V of 1898)---
----S. 193---Qanun-e-Shahadat (10 of 1984), Arts. 132, 133 & 161---Penal Code (XLV of 1860), S. 302---Transfer of case by Magistrate to Court of Session--- Evidence, recording of---Procedure---Accused persons were alleged to have inflicted injuries on the deceased---Deceased remained under treatment and died almost one year after the occurrence---Judicial Magistrate before commencement of trial and recording prosecution evidence, recorded the statement of the medical expert, whose name was mentioned in the challan---Examination-in-chief of said medical expert was recorded, wherein he opined that keeping in view the operation notes of the neuro-surgeon, X-ray and CT-scan, the injuries caused to the deceased were sufficient to cause his death in ordinary course of life---No right of cross-examination of medical expert was given to the accused persons and the Magistrate came to the conclusion that prima facie offence under S. 302, P.P.C. was attracted and being exclusively triable by the Court of Session, the case file was forwarded to the Sessions Court under S. 193, Cr.P.C.---Legality---Mode and manner adopted by the Magistrate in examining the medical officer on the point of cause of death of the deceased, was completely alien to the law of evidence and Criminal Procedure Code, 1898---After commencement of trial the Magistrate could not record the statement of medical expert in the manner he had adopted---Under Art. 161 of the Qanun-e-Shahadat, 1984 the Court had unlimited powers to put questions in order to discover or to obtain proper proof of relevant facts however, such power was directed only to achieve that object alone enabling the court to reach at a just conclusion---Such power exclusively related to the phase when the trial had already commenced and the witness(es) were examined by the party calling it, and cross-examined by the adverse party---In the present case, however, the Magistrate wrongfully assumed such jurisdiction at a pre-trial stage and only recorded examination-in-chief of the medical expert and then questions were put to him by the Court without adopting the procedure as essentially required by Arts. 132 & 133 of the Qanun-e-Shahadat, 1984---Impugned order of the Magistrate was set aside and the case was remanded to the trial Magistrate to hold trial in accordance with law.
Muhammad Sharif Bhatti, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.
Complainant in person.
M. Jaffar, DPG, Punjab for the State.
Date of hearing: 2nd November, 2017.
JUDGMENT
DOST MUHAMMAD KHAN, J.---
Leave to appeal has been sought against the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur dated 19.5.2016 whereby the petition filed under section 561-A, Cr.P.C. was dismissed.
We have heard the learned counsel for the petitioner and the learned DPG, Punjab, Mr. M. Jaffar besides the complainant in person.
Brief Facts:
The petitioners were nominated in Crime No. 36/2008 registered by Police Station "Saddar" District Bahawalpur on 2.2.2008 for offences under sections 337-A/34, P.P.C. The allegations against the petitioners are that Khadim Hussain, complainant along with his deceased brother Nazeer Ahmad and one Jan Muhammad were ploughing their land in village "Phundah" on 21.1.2008 when the petitioners came there duly armed with clubs/sticks and commanded them to stop ploughing the land with tractor but they refused. As a result of that the complainant, the deceased and the third one were brought down from the tractor. Atta Muhammad co-accused inflicted club blow on the head of the deceased. who fell down while Shah Muhammad and Altaf accused inflicted stick blows on the left and the right hand of Jan Muhammad who also fell down whereafter rest of the accused also gave thrashings with clubs to Nazeer Ahmad and Jan Muhammad at different parts of their bodies and then they fled away. Both the injured were taken to BVH after rescue force reached the spot on a phone call. The occurrence was reported late in the evening at 5.15 hours. However, after receiving Medico-legal Report, on the next day the case was registered as above.
2.Nazeer Ahmad injured was reportedly operated upon by the Neuro Surgeon and the MLO opined that offences under sections 324/ 337, 337-A, 337(iii)(iv)(vi) and 337-L(ii), P.P.C. are attracted to the case. Thus, these offences were added to the FIR.
3.It has been alleged that deceased Nazeer Ahmad remained under treatment, however, subsequently he died between the night of 23/24 January, 2009 i.e. almost one year of the occurrence.
4.The investigating agency, at the conclusion of the investigation submitted complete "Challan" before the Special Judicial Magistrate empowered under sections 30 and 34 of Cr.P.C.
5.In the meanwhile the complainant filed a private complaint, which was dismissed by the learned Additional Sessions Judge, Bahawalpur vide order dated 30.4.2014 on the ground that State case was sub judice before the area Magistrate and the injuries caused to the deceased were triable by the said court and at the conclusion of the trial, if the trial court of the Magistrate after appraisal of evidence decided that cause of death of Nazeer Ahamd deceased was due to injury sustained by him then it may refer the case for trial to the Sessions Court.
Section 347, Cr.P.C. reads as under:-
"347. Procedure when, after commencement of trial, Magistrate finds case should be tried by Court of Session or High Court. If in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, he shall send the case to the Court of Session or High Court, for trial."
6.Aggrieved by the said order, the complainant filed Revision Petition No.156/2014, however, the same was withdrawn on 15.9.2014 having not been pressed by the learned counsel for the complainant who wanted to move an application before the Judicial Magistrate where the trial of the above case was pending disposal.
7.The Special Magistrate on 16.12.2014 before recording the prosecution evidence and without due process of law to commence the trial, decided to record the statement of the medical expert/MLO., whose name was mentioned in the "Challan" under section 173, Cr.P.C. One doctor Hanif, SMO, BVH was examined but only his examination-in-chief was recorded, however, to the court question the doctor replied that keeping in view the surgical notes/operation notes of the Neuro Surgeon, Surgery Ward, X-Ray and CT-Scan from radiology department, the injury was sufficient to cause death of Nazeer Ahmad in ordinary course of life.
8.After recording the incomplete statement without giving right of cross-examination to the petitioners/accused, the Magistrate jumped at the conclusion that prima facie offence under section 302, P.P.C. was attracted and being exclusively triable by the Court of Session. Thus, the case file was forwarded to the Sessions Court under section 193, Cr.P.C. on 18.12.2014. The learned Sessions Judge entrusted the case to the Additional Session Judge who immediately took cognizance of the case; summoned the accused and supplied them with copies under section 265-C, Cr.P.C.
9.The entire controversy is with regard to the abdicating of jurisdiction and illegal or wrong assumption of jurisdiction by one court and the other. Earlier the learned Additional Sessions Judge, as has been mentioned in earlier para, had passed a speaking and fully justifiable order, but that was conveniently ignored by the area Magistrate albeit that was a binding order and had attained finality because the petition filed against that order before the Lahore High Court, Bahawalpur Bench was withdrawn by the complainant as stated above.
10.Our criminal justice system recognizes and has fully explained three different phases of criminal justice. In cognizable offences, the accused is for the first time charged by the complainant/victim, as the case may be, by lodging an FIR. At this stage, except with regard to the matter of remand of accused and obtaining permission for further investigation from the area Magistrate, no court has the authority to interfere in the course of investigation directing the investigating agency to proceed in a particular way or not to proceed in that way because that is the domain of the local police. Similarly Justices of Peace have been empowered to give some directions to the investigating agency if complained against to do what is required by law to do and also to direct transfer of investigation from one investigating agency to other for reasons to be recorded.
11.The second phase is inquiry, summarily held by the Magistrate under section 190, Cr.P.C. The Magistrate by making scrutiny of the materials collected by the investigating agency, may agree with the opinion of the police or may disagree for the reasons to be recorded, and may or may not take cognizance of the case submitted to it by the police/investigating agency, however, in both the situations the Magistrate has to record the reasons for taking cognizance if he is competent to try the accused or to refuse to take cognizance and discharge the accused from the bail bonds and cancel the FIR. At this stage, the exclusive domain is that of the Magistrate because section 190, Cr.P.C. has invested him with exclusive power to deal with the case but in a judicial manner. During this process neither the investigating agency nor any other court, even superior in rank, has got any authority to interfere with such process. If the case is exclusively triable by the Sessions Court then, it has to forward the case under section 193, Cr.P.C. to the court of Session for trial. This is of-course an administrative action of the Magistrate and is not revisable by the next court in rank or the High Court in revisional jurisdiction as has already been held by this Court.
12.The next stage is the trial stage. Here too, if the case is forwarded to the Sessions Court for trial then, it is for the Presiding Judge of the Sessions Court to apply his judicial mind to the entire facts and material on record for taking cognizance or to refuse to take cognizance if no case is made out or in its opinion the case is one which shall be tried by any other court subordinate to it or any special court, constituted under the special law. However, if it takes cognizance and issues process against the accused then, no other court higher in rank has any jurisdiction or authority to interfere with such process at this stage unless in the course of taking cognizance the order passed suffers from jurisdictional defect or illegality of incurable nature.
13.Keeping in view the above division of authority and powers between different agencies/courts i.e. investigating agency, inquiry magistrate, exercising powers under section 190 or under section 193, Cr.P.C. and the competent trial court while taking cognizance or refusing to take cognizance or independent of each other, none can control the action of the other, except in very rare cases where patent illegality is committed and any action taken by the other agency/court is in disregard of the statutory provision, rendering the process nullity in the eye of law.
14.This division of authority and power is with the object so that there shall be no unnecessary interference by one sub-organ of the same system in the affairs of the other sub-organ and all the three phases divide and demarcate the line of jurisdiction and authority of the three organs, referred to above. Therefore, any interference by an agency/court into the authority of the other, would certainly create chaos in usurping the jurisdiction of other agency/court in a manner not authorized by the law.
15.In the case of Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Interior Division, Islamabad and 2 others (1994 SCMR 2142) this Court has held as follows:
"That the powers of judicial review is a great weapon in the hands of the Judges of the superior courts however, it cannot and shall not be used unnecessarily to interfere in the functions, affairs and authority of the investigating agency at the initial stage, unless it is essentially required to be corrected, in case it violates a mandatory provision of law and proceeds in an illegal manner in the course of investigation."
The same principle would apply vigorously when the Magistrate is considering to take or not to take cognizance under section 190, Cr.P.C. and similarly, the High Court cannot interfere under Article 199 of the Constitution or to say under section 561-A, Cr.P.C. if the Sessions Court decides in a proper and legal manner to take cognizance or refuse to take cognizance unless it is directed to occasion the failure of justice or same is otherwise violative of any mandatory provision of Cr.P.C. or any other law applicable.
16.Similar view was taken by this Court in the case of Malik Shaukat Ali Dogar v. Ghulam Qasim Khan Khakwani and others (PLD 1994 SC 281) thus, when the statutory law has objectively placed the powers and authority of the investigating agency, the inquiry Magistrate and that of the Trial Court in three separate compartments, thus, none has the authority to unduly usurp the jurisdiction of the other authority under the scheme of law. Reliance in this regard may also be placed on the view held by this Court in the case of Muhammad Sharif v. The State (1997 SCMR 304).
17.In the present case, the Court of Magistrate has muddled up the matter because after commencement of trial it could not record the statement of medical expert in the manner and fashion it has adopted.
18.The law of evidence has essentially provided the manner and mode of recording statement of witnesses which cannot be bypassed under any circumstance, otherwise the statement recorded in disregard of the mandatory provision of law would become inadmissible and of no legal worth to be relied upon. In this regard, Chapter 10 of the Qanun-e-Shahadat Order, 1984 deals with the production and mode of examination of witnesses. Article 132 of the Act defines the examination-in-chief of a witness, the cross-examination and what is re-examination and under what circumstances the latter one has to be allowed, while the provision of Article 133 in mandatory words provides as follows:-
"Article 133. Order of examinations. (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
(2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross-examinations and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter."
19.True, that under Article 161 of the Qanun-e-Shahadat Order the Court has unlimited powers to put question in order to discover or to obtain proper proof of relevant facts however, it shall be directed only to achieve that object alone enabling the court to reach at a just conclusion but such questions shall be carefully put to a witness in such a manner so it may not give an impression to one or the other party that the Court is inclined in favour of the Defence or the Prosecution and one party or the other in a civil matter, however, this stage exclusively relates to the phase when the trial has already commenced and the witness(es) are examined by the party calling it, cross-examined by the adverse party. At this stage alone, the provision of Article 161 can be pressed into service. However, in the present case, the Magistrate wrongfully assumed such jurisdiction at a pre-trial stage and in that course it only recorded examination-in-chief of the witnesses and then questions were put to him by the Court without adopting the procedure as essentially required by Articles 132 and 133 of the Qanun-e-Shahadat Order. No incomplete statement shall be made part of any judicial proceedings like it was made by the Magistrate at his whims, more so, it was in utter disregard of the earlier order of the revisional court/Additional Sessions Judge, who held a correct view that let the trial proceed before the Magistrate and after recording evidence if it is of the opinion that on the basis of duly recorded evidence a different offence was constituted exclusively triable by the Sessions Court then, it could competently forward the case to the Sessions Court under section 193, Cr.P.C. The laid down procedure under no circumstances could be circumvented in the mode and manner adopted by it.
It may also be kept in mind that the provision of section 347, Cr.P.C. has been enacted to meet an eventuality arising during the trial before the Magistrate empowered under sections 30 and 34, Cr.P.C. where it could not pass a sentence for the offence punishable with more than seven years' R.I. Disregarding the earlier judgment of the revisional court and the mandatory provision of the Cr.P.C. the Magistrate by adopting a short circuit, committed serious error of jurisdiction. This error of law and jurisdiction committed by the Court of Magistrate was conveniently ignored by the learned Judge in Chambers of the High Court through the impugned judgment.
20.When were confronted with the above legal position, the learned DPG and the complainant were unable to controvert the same in any manner and conceded on the point of law.
21.It may also be pointed out that the successor Additional Sessions Judge while passing the impugned order dated 23.4.2015 has fallen into patent error, holding that the earlier judgment of the Additional Sessions Judge, Bahawalpur has not debarred the Magistrate to add the section of law i.e. section 302, P.P.C. because the then Additional Sessions Judge had rightly held that the Magistrate may exercise such powers after holding the trial and recording evidence. The mode and manner adopted by the Magistrate examining the senior medical officer on the point of cause of death of the deceased, is completely alien to the Law of Evidence and Code of Criminal Procedure.
22.The Special Magistrate, empowered under sections 30 and 34, Cr.P.C., has the jurisdiction to try all offences not punishable with death and the bar is only placed on its jurisdiction to award a sentence of more than seven years' R.I. with fine. The powers under section 347, Cr.P.C. can only be exercised, if after recording evidence in the above manner, it is of the opinion that a different offence is constituted triable by Sessions Court, then, of-course, the case could be forwarded to the Sessions Court for consideration.
Judged and considered from all angles, both legal and factual, we feel no hesitation to hold that the impugned judgments are not tenable in law, rather being in disregard of the mandatory provision of law. Accordingly, all the impugned judgments/orders are set aside and the case is remanded to the Trial Magistrate to hold trial in the manner, explained above.
Petition is converted into appeal and the same is allowed in the above terms.
MWA/M-55/SC Appeal allowed.
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