2026 P Cr. L J 393

 2026 P Cr. L J 393

[Balochistan]

Before Shaukat Ali Rakhshani, J

MUHAMMAD HAMAYUN---Petitioner

Versus

SHAMSULLAH and 5 others---Respondents

Criminal Revision No. 138 of 2023, decided on 27th March, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 435, 439-A, 526 & 190---Penal Code (XLV of 1860), Ss. 324, 337-

A, 337-D, 337-F, 147, 148 & 149---Attempt to commit qatl-i-amd,

causing shajjah, jaifah and causing different types of "ghayr-jaifah,

rioting, rioting armed with deadly weapons, unlawful assembly---

Transfer of case---Scope---Grouse of the petitioner was that the

Sessions Court vide impugned order dated 23.11.2023 had

transferred the case for want of jurisdiction to the Judicial

Magistrate without any legal justification---Main ground which

prevailed upon the Sessions Court for transfer of the case to the

Judicial Magistrate was that the injuries were not caused on the vital

parts, despite the fact that the accused persons were armed with

knives, thus it was held that provisions of S.324 of P.P.C were not

attracted in the instant case---Held: Section 324 of P.P.C evidently

manifested that if any act was done by anyone with the intention or

knowledge that by such act he could be held guilty of committing

qatl-i-amd of any person, then he would be punished for a term,

which may extend to ten years and shall also be liable to fine and if

any hurt is also caused to any person by such offender, he shall also

be liable to the punishment provided for such hurt caused by him---

Perusal of the Medico-Legal Certificates demonstrated that

petitioner had received a stab wound on the right side of his

abdomen, whereas injured MS had also received a stab wound on

the right side of his chest, beside the other injuries, which were

obviously on the vital parts and could have caused death due to

penetration into any of their organs or result of excessive bleeding,

thus the observations of the Sessions Court were misconstrued and

contrary to the record---Bare perusal of S.190 (3) of Cr.P.C. clearly

enunciated that a Magistrate taking cognizance under subsection (1)

of an offence triable exclusively by a Court of Session shall, without

recording any evidence, send the case to the Court of Session for

trial---In the instant case, it was done twice i.e., firstly, when Judicial

Magistrate after receipt of the final report under S.173 of Cr.P.C

transmitted the case file to the Sessions Court, who on 21.02.2020 framed the charge and then when the case was once again

transferred by the Judicial Magistrate on 27.07.2023, thus there was

absolutely no occasion for the Sessions Court to have had

transferred the case vide impugned order dated 23.11.2023---So be it,

the Sessions Court while framing charge on 21.02.2020 indicted the

respondents under Ss.324, 337-ADF, 147, 148 & 149 of P.P.C after

applying judicious mind, whereafter the said Court had no

justification for transferring the case, because ultimately on

conclusion of the trial, it could have acquitted the accused

respondents from the charge for the indictment of attempt to

murder as contemplated under S.324 of P.P.C---Had it been a case of

a attack of 'an accused' upon 'a person', then repeating of the blows

could have been a ground, but not in the peculiar circumstances of

the instant case, where more than four persons were indicted for

making assaults with knives, causing stab wounds on the abdomen

and chest to the injured persons according to their capability and

force, which clearly demonstrated that it could have been a fatal

blow---Thus at such a belated stage, transfer of the case for want of

jurisdiction was unwarranted---Sessions Court for assumption of

jurisdiction had prima facie ample material for proceeding with the

trial, thus the Sessions Court had erred in law as well as in facts---

Consequently, the impugned order dated 23.11.2023 drawn by the

Sessions Court was set aside and the case file was directed to be

transferred from the file of Judicial Magistrate to the file of Sessions

Court with the direction to proceed with trial in accordance with

law on its merit---Petition was allowed, accordingly.

Bilal Hussain v. The State 1982 SCMR 1141 and Wajahat Ikram v. The

State 1999 SCMR 1255 rel.

Kabeer Khan Bareech and Jahanzaib Khan Kakar for Petitioner.

Mubashir Hassan for Respondents Nos. 1 to 5.

Ms. Amna Hashmi, District Public Prosecutor ( DPP ) for the State.

Date of hearing: 21st March, 2025.

JUDGMENT

SHAUKAT ALI RAKHSHANI, J.---Through the instant criminal

revision petition filed under sections 435 and 439 of the Criminal

Procedure Code, 1898 ( Cr.P.C ), the petitioner seeks the following

relief;

It is therefore respectfully prayed that order impugned dated

23.11.2023 passed by Additional Sessions Judge-IX, Quetta in FIR

No.154/2019, in sessions case No.54/2023 may kindly be set-aside

and the case may kindly be transferred the court of Sessions Judge having jurisdiction to adjudicate the offence under section

324 Q&D, in the interest of justice

2. Genesis of the prosecution case is that complainant Muhammad

Hamayun (PW-1) got lodged FIR bearing No.154 of 2019 with Police

Station Airport Road, Quetta for the offences punishable under

sections 324, 337-ADF, 147, 148 and 149 of the Pakistan Penal Code,

1860 ( P.P.C ), averring therein that on 14.09.2019 at about 3:15 pm,

while on his way to home at Killi Paind Khan Road, Quetta, he saw

accused persons Shamsullah, Mahaazullah, Qudratullah, Azmatullah,

Kaleemullah, Zafarullah and Attaullah along with 5-6 unknown person

standing alongside the road, whilst his relatives Shoaib, Muhammad

Haris, Faisal, Muhammad Younas were lying injured and that when he

tried to help them, accused Shamsullah got hold of him, whereas

accused Kaleemullah hit him on his chest with a pipe, while accused

Qudratullah attacked his abdomen with dagger.

3. After usual investigation, respondents Nos.1 to 5 were arrested

and put on trial to face the deeds of their culpability. On

commencement of the trial, respondents Nos.1 to 5 entered the plea of

denial. During trial, respondents Nos.1 to 5 submitted an application

before learned Additional Sessions Judge, IX, Quetta ( ASJ, IX, Quetta )

for transfer of case to the court of learned Judicial Magistrate-III,

Quetta ( JM-III, Quetta ), which was allowed vide order dated

08.02.2021.

Subsequently, after transfer of the case, the prosecution in order to

bring home the charge produced as many as eight (8) witnesses. In the

meanwhile, on 30.06.2022, the petitioner filed an application for

transfer of the case to the court of learned ASJ, IX, Quetta, which was

allowed vide order dated 27.07.2023 with the observation that offence

under section 324 of P.P.C attracts to the extent of injuries caused to the

petitioner, thus the case was once again transferred to the court of

learned ASJ, IX, Quetta, where respondents Nos.1 to 5 were examined

under section 342 of the Criminal Procedure Code, 1898 ( Cr.P.C ) and

the matter remained subjudice until the learned ASJ, IX, Quetta vide

impugned order dated 23.11.2023, once again remanded back the case

to learned JM-III/FCM, Quetta with the direction to decide the case

under the offence already charged, henceforth feeling aggrieved from

order dated 23.11.2023, the petitioner has knocked the door of this

Court for transfer of the case to the court of Sessions Judge.

4. Heard. Record sussed out with the able assistance of counsel for

the adversarial parties.

5. The grouse of the petitioner is that the learned ASJ, IX, Quetta vide

impugned order dated 23.11.2023 has transferred the case for want of

jurisdiction to the learned JM-III/FCM, Quetta, without any legal justification. The main ground which prevailed upon the learned ASJ,

IX, Quetta for transfer of the case to the learned JM-III/FCM, Quetta is

that the injuries were not caused on the vital parts, despite the fact

that the accused persons were armed with knives, thus held that

provisions of section 324 of P.P.C does not attract in the instant case.

6. The paramount question herein relates to section 324 of P.P.C, thus

in order to evaluate this issue, it would be appropriate to reproduce

section 324 of P.P.C, which is as infra;

324. Attempt to commit qatl-i-amd. Whoever does any act with

such intention or knowledge, and under such circumstances,

that, if he by that act caused qatl, he would be guilty of qatl-i-

amd, shall be punished with imprisonment of either

description for a term which may extend to ten years [but shall

not be less than five years if the offence has been committed in

the name or on the pretext of honour], and shall also be liable

to fine, and, if hurt is caused to any person by such act, the

offender shall be liable to the punishment provided for the hurt

caused:

Provided that, where the punishment for the hurt is qisas which is

not executable, the offender shall be liable to arsh and may also

be punished with imprisonment of either description for a term

which may extend to seven years.].

7. Section ibid evidently manifests that if any act is done by anyone

with the intention or knowledge that by such act he could be held

guilty of committing qatl-i-amd of any person, then he would be

punished for a term, which may extend to ten years and shall also be

liable to fine and if any hurt is also caused to any person by such

offender, he shall also be liable to the punishment provided for such

hurt caused by him. The Supreme Court of Pakistan, in the case of

Bilal Hussain v. The State (1982 SCMR 1141) expounded the dicta that

application of section 307 of P.P.C, the then offence for attempt to

murder, which is now section 324 of P.P.C attracts, while considering

the nature of weapon used i.e., knife and locale of injury i.e.,

abdomen. For ease of reference, relevant para No.3 of Billal Hussain s

case supra is reproduced herein below;

3. In the first place, considering the nature of the weapon used and

the location of the injury (i.e. abdomen), the Courts below were

justified in holding that he had committed the offence under

section 307, P.P.C. Second, even an offender under section 326,

P.P.C is punishable with imprisonment for life or a term which

may extend to 10 years. R.I. Having been sentenced only to 3

years R.I. it would not make any practical difference to the petitioner even if he had been found guilty under section 326,

P.P.C.

Likewise, the apex court in the case of Wajahat Ikram v. The State

(1999 SCMR 1255) altered the sentence from section 337/34- F P.P.C to

section 324/34 P.P.C, while holding that section 324 of P.P.C provides

punishment with imprisonment of either description for a term

extending ten (10) years with fine, and if hurt is caused, the convict

shall be additionally punished for the hurt caused, which shows that

section 324 of P.P.C is not merely confined to the injuries, but to the

act, such as an act of attempt to murder, emanating and

demonstrating from the peculiar circumstances of the case. It was

also held that in case, if the culprits had attacked on their rivals at

odd hours on their way with lethal weapons, knowing that their act

was so imminently dangerous as to cause death in all probability,

then section 324 of P.P.C shall by all means attract.

8. In the instant case, the Medico Legal Officer Dr. Aisha Faiz (PW-5)

observed that petitioner Muhammad Hamayun, Muhammad Haris,

Muhammad Shoaib, Faisal and Muhammad Younas received the

following injuries;

INJURED MUHAMMAD HAMAYUN;-

INJURIES:

1 Stab wound 20x3 cm on right side abdomen with fresh bleeding

2. Wound 3cm on right side forearm.

3. 3x3 cm bruise on front of chest.

Nature: Fresh and sharp.

INJURED MUHAMMAD HARIS;-

INJURIES:

1 Stab wound 4 cm on left buttock with fresh bleeding.

Nature: Fresh and sharp.

INJURED MUHAMMAD SHOAIB;-

INJURIES:

1. Scratch 1 cm on right side chest.

2. Stab wound 6x2 cm on right side chest.

3. L/w 3 cm on left temporal region of skull.

Nature: Sharp and blunt. INJURED FAISAL;-

INJURIES:

1. Stab wound 3 cm on left buttock with fresh bleeding

Nature: Sharp and blunt.

INJURED MUHAMMAD YOUNAS;-

INJURIES:

1. Stab wound 6x2 cm on right arm with fresh bleeding

2. S/w 2 cm on left temporal region of skull.

3. Stab wound 3 cm on right leg posterior

Nature: Sharp and blunt.

9. A perusal of the said MLCs demonstrates that petitioner

Muhammad Hamayun had received a stab wound on the right side of

his abdomen, whereas injured Muhammad Shoaib had also received a

stab wound on the right side of his chest, beside the other injuries,

which are obviously on the vital parts and could have caused death

due to penetration into any of their organs or result of excessive

bleeding, thus the observations of the learned ASJ, IX, Quetta are

misconstrued and contrary to the record.

10. Section 190 (3) of Cr.P.C deals with taking cognizance by a

Judicial Magistrate for transferring the case to the Court of Session,

which for ease of understanding is reproduced herein below;

190. Cognizance of offences by Magistrates. (1) All Magistrates of the

first class, or any other Magistrate specially empowered by the

Provincial Government on the recommendation of the High

Court, may take cognizance of any offence;

(a) upon receiving a complaint of facts which constitute such

offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police

officer, or upon his own knowledge or suspicion that such

offence has been committed which he may try or send to the

Court of Sessions for trial.

(2) A Magistrate taking cognizance under subsection (1) of an

offence triable exclusively by a Court of Session shall, without

recording any evidence, send the case to the Court of Session for

trial.] BALOCHISTAN AMENDMENT:

For section 190, the following shall be substituted, namely;

190. Cognizance of offences by Magistrate. (1) Except as hereinafter

provided any District Magistrate or a sub-Divisional Magistrate

or any other Magistrate specially empowered in this behalf may

take cognizance of any offence;

(a) upon receiving a complaint of facts which constitute such

offence;

(b) upon a report in writing of such facts made by any police officer;

and

(c) upon information received from any person other than a police

officer, or upon his own knowledge or suspicion that such

offence has been committed.

(2) The provincial government may empower any Magistrate to take

cognizance under subsection (1) clause (a) or clause (b) of

offences for which he may try or send to the Court of Sessions

for trial;

Provided that in the case of Judicial Magistrate the Provincial

Government shall exercise this power on the recommendation

of the High Court;

(3) A Magistrate taking cognizance under subsection (1) of the

offence triable exclusively by a Court of Session shall, without

recording any evidence, send the case to the Court of Session for

trial.

11. A bare perusal of section 190 (3) of Cr.P.C clearly enunciates that

a Magistrate taking cognizance under subsection (1) of an offence

triable exclusively by a Court of Session shall, without recording any

evidence will send the case to the Court of Sessions for trial. In the

instant case, it was done twice i.e., firstly, when learned JM-III, Quetta

after receipt of the final report under section 173 of Cr.P.C transmitted

the case file to the learned ASJ, IX, Quetta, who on 21.02.2020 framed

the charge, and then when the case was once again transferred by the

learned JM-XI, Quetta on 27.07.2023, thus there was absolutely no

occasion for the learned ASJ, IX, Quetta to have had transferred the

case vide impugned order dated 23.11.2023.

12. So be it, the learned ASJ, IX, Quetta, while framing charge on

21.02.2020 indicted the respondents under sections 324, 337-ADF, 147,

148 and 149 of P.P.C after applying judicious mind, whereafter the

learned judge had no justification for transferring the case, because

ultimately on conclusion of the trial, he could have acquitted the accused respondents from the charge for the indictment of attempt to

murder as contemplated under section 324 of P.P.C. Had it been a case

of a attack of an accused upon a person , then repeating of the blows

could have been a ground, but not in the peculiar circumstances of the

instant case, where more than four persons were indicted for making

assaults with knives, causing stab wounds on the abdomen and chest

to the injured persons according to their capability and force, which

clearly demonstrates that it could have been a fatal blow, thus at such

a belated stage, transfer of the case for want of jurisdiction is

unwarranted. The learned ASJ, IX, Quetta for assumption of

jurisdiction had prima facie ample material for proceeding with the

trial, thus the learned ASJ, IX, Quetta has erred in law as well as in

facts.

13. For the foregoing reasons, the petition is allowed and

consequently, the impugned order dated 23.11.2023 drawn by the

learned ASJ, IX, Quetta is set aside and the case file is directed to be

transferred from the file of learned JM-III/FCM, Quetta to the file of

learned ASJ, IX, Quetta with the direction to proceed with trial in

accordance with law on its merit.

JK/102/Bal. Petition allowed.