| Citation(s) |
|---|
| 1958 SLG 4042 = 1958 SLD 4042 = 1958 PLD 24 |
Azad J. & K
Application under section 561 (A), Criminal Procedure Code, decided on 12th December 1957.
PresentedF. H. SHAH, C. J By:
Joint trial-Offences under Ss. 302 Qt 323, Penal Code (XLV of 1860) committed in course of same transaction-Joint trial legal. Criminal Procedure Code (V of 1898), S. 215--Com mitment proceeding-Murder-Charge-sheet wrongly stating that offence under S. 302, Penal Code (XLV of 1860) is triable by Magistrate-Mere accidental slip-Case committed to Sessions Court-Commitment cannot be quashed on this account. Criminal trial-Commitment-Joint trial of two or more accused-Jurisdiction of Magistrate ousted in case of one of them-Proper course is to commit both or all for trial before Court of Session-Joint trial of accused under Ss. 323 & 302, Penal Code (XLV of 1860)-All accused be committed to Court of Session-Discretion whether charge under S. 323, Penal Code (XLV of 1860) ought to be tried by Court of Session along with charge under S. 302, Penal Code (XLV of 1860) against other accused is judicial discretion to be exercised with care. Zain-ul-Abdin Shah for Petitioners. Muhammad Shari f for the Government.
Application under section 561 (A), Criminal Procedure Code, decided on 12th December 1957.
PresentedF. H. SHAH, C. J By:
Joint trial-Offences under Ss. 302 Qt 323, Penal Code (XLV of 1860) committed in course of same transaction-Joint trial legal. Criminal Procedure Code (V of 1898), S. 215--Com mitment proceeding-Murder-Charge-sheet wrongly stating that offence under S. 302, Penal Code (XLV of 1860) is triable by Magistrate-Mere accidental slip-Case committed to Sessions Court-Commitment cannot be quashed on this account. Criminal trial-Commitment-Joint trial of two or more accused-Jurisdiction of Magistrate ousted in case of one of them-Proper course is to commit both or all for trial before Court of Session-Joint trial of accused under Ss. 323 & 302, Penal Code (XLV of 1860)-All accused be committed to Court of Session-Discretion whether charge under S. 323, Penal Code (XLV of 1860) ought to be tried by Court of Session along with charge under S. 302, Penal Code (XLV of 1860) against other accused is judicial discretion to be exercised with care. Zain-ul-Abdin Shah for Petitioners. Muhammad Shari f for the Government.
ABDULLAH ETC.
VERSUS
AZAD J. & K. GOVERNMENT
Law: Penal Code (XLV of 1860)
Section: 302,323
Law: Criminal Procedure Code (V of 1898)
Section: 215, 561(A)
ORDER F. H. SHAH, C. J.--- This is an application under section 561 (A), Criminal P. C., by the five petitioners, who have been committed to the Court of Session by order dated the 3rd September 1957, of the Additional District Magistrate, Muzaffarabad, who charged one of them, namely, Abdul Aziz under section 302, A. P. C. for murder and the remaining four under section 323, A. P. C. for causing simple hurt to the deceased, praying that the commitment of the petitioners charged under section 323, A. P. C. be quashed as having been made without jurisdiction. This case had once before come on reference by the Sessions judge to this Court on another ground and one of the points, half-heartedly referred by the Sessions judge, was that in his opinion in a case like the present one, when some of the accused had been charge-sheeted under section 323, A. P. C. and another had been charge-sheeted under section 302, A. P. C., the commitment of these accused to the Sessions was illegal. No reason had been assigned for this opinion of the learned Sessions judge and the matter was not argued before me to any extent. I remarked that I did not think it to be an absolute rule that such a commitment would be illegal and that if the offence under sec tion 323. A.P.C. and the offence under section 302, A.P.C. are alleged to have been committed in the course of same transac tion, there would be nothing illegal for the Sessions judge to try both these offences together. In the present application, it is urged that the Law on this point was clearly in favour of the 4 petitioners charged under section 323, A. P. C. only. Before considering the legal position, I was invited to look at the charges framed in this case. The charge against Abdul Aziz is under section 302, A. P. C., but curiously, it is recited that the case is triable by the Additional District Magistrate himself and yet towards the end of the charge, it is ordered that the accused is committed for trial to the Court of Session. I think, this is due to inadvertence that the words in the printed form of the charge-sheet have not been struck off and substituted by the words that the case is triable by the…