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.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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