P L D 1954 Baghdad﷓ul﷓Jadid 18 (PLP)

FAIZ MUHAMMAD, C. J.‑This is a reference made to me by my learned brothers A. Rashid and A. Hamid JJ. under section 21 of the Constitution of this High Court. The section in question provides that when a Division Bench of the High Court is trying a case in the exercise of its original or appellate jurisdiction and the judges constituting it are equally divided in opinion as to the decision to be given on any point, they shall state the Point upon which they differ and the case shall then be heard upon that point by another judge and the point shall be decided according to the opinion of the majority of the judges who heard the case including those who first heard it. The circum stances which have given rise to this reference are as follows :‑ In August 1953 I transferred to the High Court for trial before itself a case under section 66 of the Bahawalpur Public Security Act which was then pending against the accused in a subordinate Court at Bahawalpur. I ordered this transfer under sub‑clause 3 of clause (e) of subsection 1 of section 526 Cr. P. C. and entrusted the trial of the case to the Division Bench referred to above. Accordingly the said Bench started the proceedings and after recording the evidence of eleven prosecution witnesses on 7th and 8th of November 1953 called upon the accused to explain the circumstances appearing in evidence against them as required by section 342 Cr. P. C. Upto this point there was no difference of opinion between my learned brothers. It would therefore be fair to assume that after having heard the evidence produced by the prosecution before them till the 8th of November they formed the opinion that material had been brought on record which justified their examining the accused with a view to enabling them to explain the circumstances appearing in evidence against them. The accused however declined to answer the questions put to them at this stage. The point to be considered next was whether the material placed on record furnished grounds for presuming that the accused had committed an offence under section 66 of the Bahawalpur Public Security Act so that a charge may be framed against them under it. On this point the two learned Judges have differed. Rashid J. has held that me evidence on record fails to prove that Mr. Mahmood Khan and Mr. Nizamud Din Haidar made or published the impugned statement which comes within the purview of section 66 of the Bahawal pur Public Security Act. Hamid J. on the other hand has opined that a prima facie case to justify the framing of the charge against the two accused has been made out. As regards the third accused in the case (Mr. Waliullah Uhad) the learned judges agreed that a prima facie case had been made out against him and therefore they framed the charge against him. They have written rather lengthy orders in support of their respective points of view. I am candidly of the opinion that they ought not to have done this. Section 21 of the Constitution of this High Court to which a reference has been already made provides that in case of a difference of opinion between the judges trying a matter they shall state the point upon which they differ and another judge shall bear the case and express his opinion on that point and then the decision of the majority of all the judges who heard the case shall prevail. When both or either of the judges who are seized of a case write lengthy orders discussing in detail the evidence produced by the prosecution before them then it becomes necessary for the third judge also to enter upon a detailed discussion of the evidence on record which I personally feel disinclined to do and will avoid it if I can. Anyhow my learned brothers did formulate the precise point of difference between them and it is this with which I am concerned. The question posed by them is as follows:- "Whether there are sufficient grounds on record for pre suming that the accused Mr. Mahmood Khan and Mr. Nizamud Din Haidar have committed an offence under section 66 of the Bahawalpur Public Security Act. In other words whether the evidence on record justifies the framing of charge against the two accused referred to above under section 66 of the Bahawalpur Public Security Act". For a proper appreciation of the point on which my learned brothers have differed it is necessary to refer to the provision of law relating to the question of discharging an accused person or framing a charge against him. These provisions are contained in sections 253 (I) and 254 of the Code of Criminal Procedure, which run as follows :‑ "253 (1) If, upon taking all the evidence referred to in section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him". "

254. If, when such evidence and examination have been taken and made, or at any previous stage of the case the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused". It should not be necessary for me to say that for arriving at a correct decision on the point it is imperative to read these two sections together. Although their phraseology slightly differs the object which the Legislature had in view in framing them must be the same, otherwise a contradiction will arise between these. According to accepted canons of interpretation of laws it has to be presumed that the Legislature did not intend to contradict itself. Taking subsection 1 of section 253 Cr. P. C. first we find that it provides that if upon taking all the evidence as may be produced in support of the prosecution and on making such examination of the accused as the Magistrate thinks necessary he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction be shall discharge him. As far as this subsection is concerned I am of the opinion that the emphasis rests upon the words "if unrebutted". In other words what is necessary to see at this stage is whether there, is any evidence on record which if unrebutted, will result in the conviction of the accused. This is the same thing as saying that if there is no evidence on record for presuming that an offence has been committed by the accused he or they shall be discharged. Coming to section 254 Cr. P. C. we find that it enjoins upon the Court to frame a charge against the accused if it is of opinion that grounds exist which give rise to the presumption that he has committed an offence. These grounds must no doubt be based upon evidence which can be direct or indirect or circumstantial. A fact is said to be proved when after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists. (Section 3 of the Evidence Act). Mr. Farzand Ali counsel for the accused referred to the definition of the expression "evidence" given in the Evidence Act and urged that it consists only of statements which the Court permits to be made before it and of documents produced for the inspection of the Court. I am afraid I cannot agree with the counsel on this point. The definition of "evidence" given in the Act must be read with the definition of the expression "proved". It is by reading the two together that the Court is enabled to take into consideration, a number of other matters when forming an opinion about an occurrence. I have considered it necessary to discuss this point at length because, as I will presently show, it has a bearing upon the facts of the present case. The parties have cited before me a large number of rulings of the various High Courts in support of the views expressed by my brother judges. I will discuss these rulings and also the rulings relied upon by the learned judges themselves if necessary after I have stated the facts which according to my read ing of the evidence, were before them when they were considering the question whether a charge should or should not be framed against Mr. Mahmood Khan and Mr. Nizamud Din Haidar. I have already stated that I am disinclined to enter upon a detailed examination of the evidence on record if I can help it. But since my learned brother Rashid J. has done this it is necessary for me to point out as briefly as I can, what my two brothers had before them on the 10th of November 1953 when they agreed to examine the accused and later when they disagreed on the question of framing the charge. According to my reading of the evidence on record the following facts can be held as proved until they are rebutted :‑ (1) That "Kainat" is a weekly paper edited and published by Mr. Waliullah Uhad the third accused against whom charge has been actually framed. (Vide evidence of Muhammad Yaqoob P. W.) (2) That the particular issue of "Kainat" in which the impugned statement Exh. P‑A appeared was printed and published by Mr. Waliullah Uhad. (Vide evidence of Fazal Husain P. W.). (3) That "Kainat" is an anti‑Muslim League paper. (Vide statement of Rao Fazlur Rehman P. W. in cross‑examination by Mr. Mahmood Khan). (4) That Mr. Mahmood Khan and Mr. Nizamud Din Haidar belong to the political party formed to contest Elections against the Muslim League. (Vide statement of Fazlur Rehman P. W. in answer to questions put by Mr. Mahmood Khan in cross -examination). (5) That Mr. Mahmood Khan, Mr. Nizamud Din Haidar and Mr. Waliullah Uhad have been closely associated for the purpose of opposing the Muslim League. (Vide copy of Dhandli Number of the "Kainat" placed on record by the accused themselves). (6) That the impugned statement Exh. P‑A purports to have been issued to "Kainat" by Mr. Mahmood Khan and Mr. Nizamud Din Haidar. (This is established by the production and proof of the issue of the "Kainat" in which Exh. P‑A appeared). Now each one of the facts set out above taken singly may not amount to much and may not be sufficient to give rise to the presumption that Mr. Mahmood Khan and Mr. Nizamud Din Haidar made the impugned statement to Mr. Waliullah Uhad for publication in the party Organ. But we must take into consider ation the cumulative effect of all these facts. In other words we will have to see what view of the matter will be taken by a prudent man after applying his mind to these facts. Will be or will he not on the basis of this material act upon the assumption that Mr. Mahmood Khan and Mr. Nizamud Din Haidar made the impugned statement Exh. P‑A to the Editor of the "Kainat"? I have reasons to believe that both the learned judges seized of the case, had arrived at the conclusion that Mr. Mahmood Khan and Mr. Nizamud Din Haidar had made the impugned statement to the Editor of the "Kainat", otherwise they would have differed on the question whether the two accused should or should not be examined under section 342 Cr. P. C. If there were no evidence on record involving these accused in the commission of the offence my learned brother Rashid, J., would not have agreed to examine Mr. Mahmood Khan and Mr. Nizamud Din Haidar on the 10th of November 1953 i.e. two days after the conclusion of the first part of the prosecution evidence. Having agreed to examine the accused under section 342 Cr. P. C. it did not lie with him to the round and say that the examination was illegal because there was no evidence on record to justify it. Notwithstanding this he has on the basis of rulings referred to in his order, held that when there is no evidence on record connecting the accused with the commission of an offence it is illegal to examine him under section 342 Cr. P. C. This may be so. But the fact remains that not only the material set out above but also the evidence of two other witnesses, was on made record when my learned brothers were considering the point whether a charge should or should not be framed against Mr. Mahmood Khan and Mr. Nizamud Din Haidar. It appears to me that Rashid completely overlooked the whole of this material and confined his entire attention to the evidence of these two witnesses i.e. Malik Muhammad Hayat and Abdul Latif P. Ws. He has disbelieved the evidence of Malik Muhammad Hayat on the ground that the witness gave 8th of May 1953 as the date on which be had a talk with Mr. Mahmood Khan in the room of Government Advocate in the High Court building and that the said date happened to be a Friday when the offices are closed. In other words the mere giving of a wrong date about an occurrence is, in the opinion of my learned brother, sufficient to disbelieve the sworn testimony of a witness. I beg to differ from him. Even the best amongst us are liable to make mistakes about dates. Malik Muhammad Hayat P. W. also added the word "probably" before the date. Apart from this it has also to be seen whether what the witness states to have heard from Mr. Mahmood Khan was admitted or denied by the latter. The material part of the witness's statement consists of his having heard from Mr. Mahmood Khan that according to the latter's information Mr. Gopang was facing difficulty in obtaining Nomination Forms. Let us compare this with questions put by Mr. Mahmood Khan to Rao Fazlur Rehman and Ch. Habibullah P. Ws. Mr. Mahmood Khan asked Rao Fazlur Rehman whether Ali Muhammad and Muhammad Akbar Kanjoo had demanded Nomination Forms from him and that be had refused to give the same to them. The witness answered the questions in the negative. Similarly Mr. Mahmood Khan asked Ch. Habibullah if it was not a fact that complaint had been made to him by the accused that D. C. Rahimyar Khan (Rao Fazlur Rehman) had refused to supply Nomination Forms to the Opposition Candidates. The witness Ch. Habibullah, answered this question in the negative. Mr. Mahmood Khan is shown to have pressed the matter further by asking Ch. Habibullah whether Ali Muhammad and Muhammad Akbar Kanjoo had not made complaints to him in this behalf. The witness, answered this also in the negative. This clearly shows that the accused rightly or wrongly believed that Opposition Candidates were being refused Nomination Forms. If this had not been the case Mr. Mahmood Khan would not have put these questions to the two official witnesses. The trend of these questions indicates that this might be the defence of the accused to the charge levelled against them. It was held in A. I. R. 1930 Cal. 442 that the defence of the accused may be inferred from the trend of their cross‑examination. The statement purporting to have been made by Mr. Mahmood Khan and Mr. Nizamud Din Haidar and published in the "Kainat" is also to the effect that the Opposition Candidates bad been refused Nomination Forms Of course that statement referred to some other matters also. But the gravamen of the charge against the accused is that they attributed refusal to Government Officials to supply Nomination Forms to the Opposition Candidates. In the face of this further material brought on the record of the case not by the prosecution but by the accused themselves through their cross‑examination, I fail to see how it can be said that there was no evidence on record to justify the examination of the accused under section 342 Cr. P. C., for the purpose of enabling them to explain their position in regard to circumstances appearing against them in evidence. It is also necessary for me to discuss at some length the evidence of Abdul Latif P. W. This witness said in Court that he had heard Mr. Nizamud Din Haidar saying that one Mr. Gopang had been refused Nomination Forms. This part of the witness's evidence is quite in accord with the possible defence of the accused as far as it can be inferred from their cross‑examination of the prosecution witnesses. The witness also stated in Court that when he met Mr. Mahmood Khan a little later he told him that he and Mr. Nizamud Din Haidar had issued a statement in the "Kainat" relating to the Jamaldin Wali election. As regards this witness I may also state that I do not see eye to eye with my learned brother Rashid J. that he, the witness, should be disbelieved because he happens to be poor or a man of low status and that a person of the "rank and education" of Mr. Mahmood Khan could not "condescend" to talk to him. In fairness both to the rich and the educated, and the poor and the uneducated I may state that truth or falsehood is not a monopoly of either. It has been held in 1935 Rang. 497, 1938 Lah. 534 and 1924 P. C. 106, that a witness is not to be disbelieved merely because he happens to be poor or of low status. Incidently I may state that the witness had been a Hawaldar Major and was retrenched and granted a discharge certificate. He was trying for a job in the Police Department and till he got one he opened a small shop to make his ends meet. It was hardly proper and just for my learned brother Rashid J. derisively to describe the witness as a mere hawker overlooking his previous record of service in the P. N. G. Another reason given by Rashid J. for disbelieving the evidence of this witness is that time given by him of his going to Mr. Nizamud Din Haidar's house on the 13th of May 1953 was 3 p. m. From this the learned judge has concluded that the witness was not telling the truth because it was not possible for Mr. Nizamud Din Haidar to be sitting on the platform at that hour of the day in the hottest month of Summer. On going through the statement of this witness notice that at first he stated that he went to Mr. Nizamud Din Haidar's house in the evening at 4‑30 p. m. Later on however he changed the time to 3 or 3‑10 p.m. This variation in time read with the word "evening" used by the witness clearly indicates that the time which the witness was giving was approximate and not exact. Therefore the conclusion drawn by my learned brother does not necessarily follow. It is a notorious fact that people in this country are not particularly careful in stating the hour of the day at which they see an event take place. A third reason advanced by Rashid J. for disbelieving this witness is that his statements to the police under section 162, Cr. P. C. and before Magistrate under section 164 Cr. P. C. differ from what he stated in Court. As regards both these statements it would be enough to say that they were not proved and brought on record in accordance with law. In my opinion the learned judge should not have even referred to them. The learned Government Advocate pointed out the flaw to the learned judge but the latter brushed it aside by saying that the question was only one of academic value, because the witness did not deny having made the statements to the Police and the Magistrate. This was not the correct view of the legal position. On the basis of material on record with which I have dealt above, I am definitely of the view that my learned brothers were perfectly justified in examining the accused under section 342 Cr. P. C. With the object of enabling them to explain circum stances appearing against them in evidence. No question of trying to fill gaps in the prosecution case arose at this stage. Of course it was open to the accused not to avail of the opportunity offered to them. Under section 342 Cr. P. C. they were not bound to answer question put to them and no action can be taken against them for their having withheld the answers. But the same section also empowers the Court to draw any inference, from such refusal as it considers just. In fact refusal of the accused to answer questions put to them under this section gives rise to a presumption under section 114 of the Evidence Act. Illustration "(h)" under section 114 of the Act makes the point quite clear. It runs as follows, ‑ "The Court may presume that if a man refuses to answer a question which he is not compelled to answer by law, the answer if given, would be unfavourable to him". As regards presumptions of fact or natural presumptions it has been held that these are inferences which the mind naturally and logically draws. (1932 Mad. 343). In the same ruling it was also observed that when inferring the existence of a fact from another, Courts of justice do nothing more than to apply a process of reasoning which the mind of any intelligent being would, under similar circumstances, apply for itself. It has been held in 41 Cr. L. J. 563,16 Cr. L. J. 724 and many other rulings of various High Courts that the refusal of an accused person to answer questions put to him under section 342 Cr. P. C. is attended with great risk to him in as much as the Court may draw such inference from his refusal as it thinks just. All that is necessary is that before asking the questions the Court should be satisfied that material had been brought on record, to justify its asking the questions. Conscious of the weakness of his client's position in this regard Mr. Farzand Ali urged that the questions asked of the accused by my learned brothers were too vague and too indefinite to enable them to make any statement. He therefore contended that refusal to answer such questions did not expose them to any risk. In support of his contention he cited a ruling of the Federal Court of Pakistan. As regards this ruling i.e. P L D 1952 F. C. 63 I am inclined to think that the learned counsel did not read the questions put to the accused in that case. These questions which are given at page 70 were as follows : ‑ "Question.‑You have heard the examination and cross -examination of the prosecution witnesses. What is your defence?" "Answer‑I am innocent". 'Question.‑Will you adduce any evidence in defence ?" "Answer.‑"No'. Now there can by little doubt that the above questions were vague and indefinite. But this cannot be said of the questions put to the accused by my learned brothers in the present case. These questions were as follows :‑ Question No. 1.‑Did you give any statement to the Press which was published in the form of an article Exh. P.W. 6/4 in the "Kainat" dated the 12th of May 1953 ? "Answer.‑I reserve my answer to this question: Question No. 2.‑Was this article P. W. 6/4 published on the basis of the statement made by you to the Press ? Answer.‑I reserve my answer to this question. Question No. 3.‑Did you reasonably believe that the article Exh. P.A/2 was correct? Answer.‑I reserve my answer to this question. It is evident that there is no vagueness about these questions. The principle which should govern the examination of the accused under section 342 Cr. P. C. is that it should be neither so general as to be vague, nor so critical as to amount to cross -examination of the accused. I am glad to say that my learned brothers followed this principle in their questions. I will now deal with the case law relied upon by my learned brothers and cited by the counsel. At the very outset I may state that there is no gain‑saying the soundess of the principle of law enunciated in the rulings relied upon by Rashid, J. It is to the effect that an accused person should not be examined under section 342 Cr. P. C. if the prosecution has failed to place on record any evidence which furnishes grounds for presuming that the accused has committed an offence. The section itself is clear on the point. Mr. Manzoor Qadir counsel for the prosecution when asked whether he controverted the principle, significantly stated that he not only subscribed to it but also relied upon it in support of his case. This being the position what has to be seen is whether the facts of the cases reported in rulings cited by Rashid J. were on all fours or even almost on all fours with the facts of the present case so as to justify the application of the principle enunciated in them to the present case. In discussing the rulings relied upon by Rashid J. I will first of all take up a ruling of this very High Court given by my very learned predecessor Din Muhammad C. J. This ruling is reported as P L D 1950 B. J.

5. In the case covered by it the accused had been convicted and sentenced under section 412 I P C. The solitary witness examined for the prosecution in the case was Mr. Dilshad Ali Kureishy Magistrate who had taken down the statement of the accused under section 164 Cr. P. C. without complying with the provisions of section 364 Cr. P. C. Therefore this statement' was ruled out of consideration. No other witness was examined in the case and the conviction was based on answers given by the accused in their examination under section 342 Cr. P. C. This was clearly wrong. My learned predecessor therefore rightly held that the trying Magistrate should not have examined the accused under section 342 Cr. P. C. and base their conviction on such examination. There is thus not the remotest similarity between the case in which my learned predec cessor gave the ruling and the present case. The position was very much the same in three of the other rulings relied upon by Rashid J. namely 27 Mad. 238, 39 Mad, 770 and 1923 Lah

225. The case dealt with by the first of these rulings was for defamation. On the 15th of July when the accused in that case were examined there was "absolutely no evidence" that they had by words intended to be read, made or published any imputation concerning the complainant. It was therefore rightly held that the examination of the accused under section 342 Cr. P. C. was not justified in that case. In that present case however the position is just the reverse. I have already indicated that not only a mass of circumstantial evidence but also the statement of one direct witness have been placed on record, which until rebutted, clearly point to the fact that Mr. Mahmood Khan and Mr. Nizam‑ud -Din Haidar had made the statement Exh. P‑A, which purported to have been made by them and was published in the "Kainat". Similarly in 39 Mad. 770 also no evidence had been placed on record involving the accused in the commission of the alleged offence by the day on which the accused were examined under section 342 Cr. P. C. by the Committing Magistrate. Therefore their examination was not justified. In 1923 Lah. 225 also it is admitted that no evidence bad been led by the prosecution to connect the accused in that case with commission of alleged offence. The only ruling relied upon by my learned brother Rashid J. which requires serious consideration by me is 26 Cr. L. J. 1078. This is a Division Bench ruling of the Lahore High Court given by forde and Scotsmith JJ. In this ruling the learned judges laid down two principles, firstly that a newspaper cannot be admitted in evidence without formal proof of the fact that it is what it alleges to be and secondly that mere production of a newspaper is no Proof of the truth of its contents. As far as the first principle is concerned I need say no more than that in the present case it has been formally proved that the document in which the statement Exh. P‑A appeared was an issue of the weekly paper "Kainat" which is edited and published by Mr. Waliullah‑Uhad the third accused in the case against whom a charge has been already framed. As regards the second principle I may point out that in the present case the prosecution has not merely produced the issue of the "Kainat" in which the impugned statement appeared but has also proved that the said issue was edited and published by Mr. Waliullah Uhad. The prosecution has further proved that "Kainat" is an organ of the political party of which Mr. Mahmood Khan and Mr. Nizamud Din Haidar are members, and that the programme of the party is to oppose the Muslim League Government. This is not all. It has also been brought on 'record that Mr. Mahmood Khan and Mr. Nizamud Din Haidar had a grievance against Government Officials that the latter had refused to give Nomination Forms to Opposition Candidates Mr. Gopang, Ali Muhammad and Muhammad Akbar Kanjoo. The question which naturally arises in the presence of these proved facts is whether the statement Exh. P‑A which Purports to have been made by Mr. Mahmood Khan and Mr. Nizamud Din Haidar can be presumed to have been made by them. I do not wish to go into this question at this stage of the case beyond saying that in the face of facts set out above there is no alternative for me but to hold that these are certainly the circumstances appearing in evidence against the accused and it was for them to explain them if they liked. As regards an act which purports to have been done in the ordinary course of things the natural presumption is that it was done in the manner in which it purports to have been done. Of course the presumption thus created is rebuttable. It may also be noted that the facts of the present case were materially different from the facts of the case reported in 26 Cr. L. J. 1078. In the latter case it was not proved that a register alleged to belong to a particular association was in fact the register of that association. Nor was it proved that copies of a newspaper known as " Akali Pardesi " placed on record were really copies of that paper, Besides this in that case it was also alleged that the accused‑appellants were members of an unlawful association and were present in a meeting of the association. The two witnesses Mr. Karam Khan and Sheikh Ghulam Hussain who were expected to depose to the presence of the accused in the meeting, could not say that they saw the accused in the meeting. Mr. Jodh Singh another witness in the case on whose report Mr. Karam Khan and Sheikh Ghulam Husain had relied also stated that he did not himself see the appellants in the meeting. The trial Court placed reliance for the presence of the accused in the meting on the appearance of their names in some issues of the paper "Akali Pardesi". But the identity of that paper itself was not proved as it should have been. Therefore the learned judge held that there was no evidence on record to justify the examination of the accused under section 342 Cr. P. C. and base their conviction on such examination. I have already stated that the soundness of the principle that the accused should not be examined under section 342 Cr. P. C. unless and until circumstances appear in evidence against c them cannot be gainsaid. The question in such cases is therefore not so much of law as of fact. The trial Court should first make sure of the facts of the case given in the ruling which it wishes to apply to the facts of the case under enquiry or trial before it. A Judicial Officer takes a great risk if he overlooks, ignores or suppresses the material brought on record merely to make use of certain rulings which have caught his fancy. In the course of his arguments Mr. Farzand Ali referred to a number of rulings on the same point. Some of these rulings have been dealt with above and I do not think it is necessary for me to deal with others as far as this point is concerned. The point which requires consideration next is whether from the material on record in the present case it can be held that a prima facie case against Mr. Mahmood Khan and Mr. Nizamud Din Haidar has been made out so as to justify the framing of charge against them. This is the question on which my learned brothers differed after having agreed to examine the accused under section 342 Cr. P. C. I have given my very serious consideration to it. The decision of this point must depend, as I have already indicated, upon the interpretation of sections 253 and 254 Cr. P. C. read together. According to my reading of the evidence led by the prosecution ample material has been placed on record which as long as it stands unrebutted furnishes ground for presuming that the accused Mr. Mahmood Khan and Mr. Nizamud Din Haidar have committed an offence under section 66 of the Bahawalpur Public Security Act. Therefore as far as point under reference is concerned I agree with Hamid J. that a prima facie case has been made out against these two accused also and that a charge should be framed against them. I am sorry that this order of mine should have become so lengthy. But the order of my learned brother Rashid J. and the lengthy arguments addressed to me by the counsel of the parties left me no alternative. I could not conscientiously allow to go unnoticed my learned brother's treatment of evidence led before him and Hamid J. in this case. This would have created an un wholesome precedent for the‑State judiciary. The record of the case along with this order to be returned to the Division Bench seized of the case for further proceedings. A. H. Reference answered.