1970 P Cr (PLP)

Cr. Misc. No. 5287 and Cr. Misc. No. 5699 of 1969 are connected matters, having been filed by Muhammad Azam and Muhammad Akbar petitioners respectively for quashing of Commitment Order passed against them by the learned Magistrate Jhelum on 18-8-1969 under section 302/34, P. P. C., finding a prima facie case against the two petitioners.

2. The short background of the petitions is that on 11-2-1968, a case under section 302/34, P. P. C. was registered against the two petitioners at Police Station Dina, Jhelum at 5-15 p. m. at the instance of Master Ali Asghar who appeared as P. W. 1 during Inquiry before the Magistrate. The version set out in the F. I. R., in substance, is that earlier, on the same day, the complainant, accompanied by one Ghualm Yousaf, came to the house of Inayat Beg deceased after having attended the funeral prayer of one Karam Elahi Kumhar of their village Khana Boki. While all the three, namely, the complainant, Ghulam Yousaf and Inayat Beg, were sitting in the courtyard of the house of the latter, Muhammad Akbar and Muhammad Azarn petitioners, both armed with revolvers, passed in front of the house on their way to the house of Karam Elahi Kumhar for offering condolences. Both of them laughed at Mst. Fehmeeda Begum P. W., brother's wife of Inayat Beg deceased, who took exception to this but the two petitioners started abusing her. Seeing his sister-in-law being thus insulted, the deceased picked up a stick and dealt a blow with it on the head of Muhammad Akbar petitioner who fired five shots in rapid succession, one of which hit Inayat Beg in the chest, felling him at the -spot. Mst. Fehmeeda Begum P. W. proceeded towards him, but Muhammad Azam petitioner fired two shots at her with his revolver one of which hit Mst. Febmeeda Begum on the chin near the lower lip, knocking out one tooth and bruising the lip while the other hit her daughter Mst. Kausar on the left foot. Inayat Beg succumbed to the injury almost instantaneously. The F. I. R. further goes on to narrate yet another occurrence having taken place in the same transaction which resulted in the death of one Muhammad Afzal, with which we are not concerned for the purposes of the present case. Suffice it to say, however, that after police investigation, the two petitioners were sent up to face Inquiry under section 302, P. P. C. on the conclusion of which they were committed to stand trial which has given rise to the two petitions.

3. It would not be out of place to mention that the parties are related inter se, being collaterals besides having matrimonial relationship. Significantly enough, Mst. Kausar, who was also admittedly injured in the course of the occurrence, allegedly at the hands of Muhammad Azam petitioner, was not cited as a prosecution witness in the calendar of witnesses. Furthermore, Ghulam Yousaf, one of the eye-witnesses mentioned in the F. I. R. was given up by the prosecution as having been won-over by Muhammad Akbar, one of the petitioners. It would also be relevant to mention in this context that the two petitioners do not seem to be pulling together. Yet another development which needs reference to complete the narrative is that at the instance of Muhammad Akbar, Ghulam Yousaf, the given up P. W., was sought to be summoned by the learned Magistrate as a Court witness, but this order was successfully challenged in the High Court by Muhammad Azam petitioner in Cr. Revision No. 486/69 which was allowed by my learned brother Shaukat Ali, J., vide his Lordship's order dated 25-4-1969, with the result that Ghulam Yousaf was not examined as a Court witness either. Consequently, therefore, the only eye-witnesses who entered the witness-box during the inquiry were Ali Asghar P. W. 1 and Mst. Fehmeeda Begum P. W. 2, who apparently made some concessions in favour of Muhammad Azam, and yet the learned committing Magistrate, invoking section 34 of the P. P. C., committed both the petitioners to stand trial for offences under sections 302/34 and, 307/34, P. P. C., for having committed the murder of Inayat Beg in the first instance and having also made a murderous assault on Mst. Fehmeeda Begum and Mst. Kausar, the two injured ladies,

4. It is contended on behalf of Muhammad Azam petitioner before me that it is a case of no evidence, whatever, in so far as Muhammad Azam is concerned and since this being essentially a question of law, it would be a fit case for quashing of Commitment proceedings under section 215 of the Cr. P. C. Reliance is placed in this regard on Harendra Lai Roy Chowdhuri v. Sm. Haridasi Debi and others (A I R 1914 P C 67), Indar Singh v. Emperor (A I R 1930 Lah. 545), Maniram Manghanmal and another v. Emperor (A I R 1932 Sind 157), Khera and others v. The Crown (P L D 1954 B J 30), Haft and others v. The Crown (P L D 1952 B J 60), Muhammad Hanif v. The Crown (P L D 1956 Lah. 39.4) and Ch. Bhagat Ram v. Major P. T. James (A I R 1945 Lah. 1). As regards the inapplicability of section 34 of the P. P. C. to the circumstances of the case, Sardar Muhammad Zafarullah, learned counsel for Muhammad Azam petitioner, has relied on Mahbub Shah v. Emperor (A I R 1945 P C 118).

5. On behalf of Muhammad Akbar petitioner, it is contended that the allegations against him stand in line with those of Muhammad Azam petitioner and that the case of the two cannot be split in the circumstances of this case. A grievance is also made of the non-examination of Ghulam Yousaf eye-witness, who, in all probability, would have even exculpated Muhammad Akbar petitioner. It is also contended that it would not be possible to lay hands on a single authority where the cases of two persons having been committed to stand trial on the basis of invocation of section 34, P. P. C. were ever split, the position being devoid of judicial precedents.

6. On the contrary, on the basis of Hasan Din v. Emperor (A I R 1931 Lah. 467) and T. Krishniah v. Government of Mysore (A I R 1950 Mys. 44); learned counsel for the State contends that want or insufficiency of evidence would not justify the quashing of Commitment proceedings, particularly when then the cases between the two are so inseparably inter-linked that it would be difficult to split them without causing prejudice to Muhammad Akbar petitioner. It is further submitted that since in his statement under section 342, Cr. P. C. made before the committing Magistrate, Muhammad Akbar petitioner has clearly shifted the blame on the shoulders of his co-accused Muhammad Azam, it would be unfair to him if the order is quashed to the extent of the latter.

7. On the basis of the above contentions, the questions that fall for determination before me are: (1) Whether want of evidence or insufficiency of evidence are both questions of law or only none of them is a question of law or only one of them is a question of law; and (2) Whether the case before me is one of want-of evidence or of insufficiency of law.

8. The fate of the case would obviously be determined by the findings on the above issues on which would depend the justification or otherwise of the invocation of the provision contained in section 215, Cr. P. C. for quashing or maintaining the order of commitment as the case may be. There has been considerable divergence of opinion on the answer to the first question. In Harendra Lai Roy v. Ilaridasi Debi, a Civil Appeal taken to the Privy Council, it was held by their Lordships of the Judicial Committee that a decision that there was no evidence to support a finding of fact was a decision of law. The same view was followed by the Calcutta High Court in Sheobux Ram v. Emperor (2 Cr. L J 534), a Full Bench authority. This was a majority judg ment in which a contrary view was expressed by Geidt, J., who held that the questions of the strength of weakness, sufficiency or. insufficiency of evidence were questions of fact and not of law. Mr. Justice Harrington's view prevailed as the majority view who observed as follows: -- "The test which in my opinion should -be applied to decide whether a committal ought or ought not to be made on the facts is this-assuming that the whole of the evidence telling against the accused is true, is there a case which a Judge at a trial could leave to a Jury? if the evidence is such that a Judge would have been bound to rule that there was no evidence on which a jury could convict, then a committal ought not to be made. If there was any evidence which called for an answer however great the preponderance in favour of the prisoner might be--then the committal was proper." The same question was examined by Beckett and Marten, JJ. of the Lahore High Court Bliagat Ram v. P. T. James. Their Lordships reviewed considerable case-law and also referred to sharp division of opinion expressed 'on this issue. In support of the contrary view that absence of evidence was not a question of law reference made to Gansham Das v. Emperor; Hassan Din v. Emperor ; Emperor v. Suliman Ibrahim (12 Cr. L J 256) and In re: Sessions Judge of Coimbatore (15 Cr. L J 665). In support of the contrary view preferred by their Lordships reliance was placed on the Full Bench decision of the Calcutta High Court in 2 Cr. L J 534 referred to above. Beckett, J. who delivered the judgment observed as follows "My own view is that the absence of evidence sufficient to justify an order of commitment may be regarded as a legal ground, though it may sometimes be difficult to draw a line between aground of this kind and a mere weakness of the evidence. The criterion may possibly be, as my learned brother suggests, that a number of ingredients are generally required to make up an offence and if it appears from the evidence that one of these ingredients is entirely lacking from the prosecution case, this would b,.;' a good legal ground for quashing the commitment. In any case, since it is for the Judge to decide whether there is or is not a 'case to lay before a jury, this, in its usually accepted sense, would seem to be a question of law rather than of fact since it is a question for the Judge to decide, whereas the jury is the sole Judge of the fact." Conflicting views were, however, expressed by different Benches of the various High Courts and the controversy could not be settled for a pretty long time. Krishna v. Mysore Government; is another Full Bench authority which could be arrayed on the side of the view that want of evidence is a question of fact. After reviewing almost the entire case-law their Lordships came to the conclusion, which again was not unanimous, that absence of evidence was not a question of law within the meaning of section 215, Cr. P. C. The controversy was more or less set at rest by the Supreme Court of India in Khushi Ram v. Jlashim (A I R1959 S C 542). In this case, the learned Single Judge of the Allahabad High Court quashed an order of commitment on an application made before him under section 561, Cr. P. C. This, of course, could not be invoked in the presence of the specific provision contained in section 215, Cr. P. C. which was directly applicable to the case. As regards the view taken by the learned Single Judge in the impugned judgment that the absence of evidence was a question of law pure and simple, their Lordships observed: "The distinction must always be drawn between absence of legal evidence and absence of reliable evidence. If it could be said with justification that there was no legal evidence at all in support of the prosecution case, it may lead to the inference that the commitment was bad in that it was not based on any legal evidence at all. But on the other hand where circumstances are relied upon to show that the evidence may perhaps not be delivered, they do not lead to the inference that there is no legal evidence on the record." From the above discussion it is clear to me that the question of want of evidence is essentially a legal question justifying the quashing of an order of commitment under section 215, Cr. P. C. As regards the other aspect of the matter, whether a case of insufficiency of evidence would also amount to a question of law, the position was frankly conceded by the learned counsel for Muhammad Azam petitioner that it would not be so. Apart from the concession the position is even otherwise clear that the mere insufficiency of evidence would not justify the invoca tion of section 215, Cr. P. C. for the obvious reason that firstly, any finding in this regard by the High Court in exercise of its revisional jurisdiction would amount to usurpation of the jurisdiction of the trial Court and would otherwise be fraughtg with the danger of causing prejudice to one party or the other as a result of the finding of the High Court. Secondly, assuming that the evidence already brought on the record during enquiry was insufficient, it would be open to the Sessions Judge to take additional evidence by summoning a given-up prosecution witness either as a witness of the prosecution or as a Court witness in exercise of the powers vesting in him under section 540, Cr. P. C.

9. The next question that falls for determination, however, is as to whether the instant case is the one of want of evidence or that of insufficiency of evidence. It was strenuously argued by the learned counsel for Muhammad Azam petitioner that his case fell in the first category justifying the invocation of section 215, - Cr. P. C. for quashing a commitment proceeding. I have already referred to the argument raised by the learned counsel in support of this contention. To put it briefly, his case was that Asghar Ali complainant himself had made the presence of Muhammad Azam petitioner at the relevant time extremely doubtful by categorically stating that it was only his guess. Secondly, that Mst. Fehmida Begum had clearly and categorically excluded Muhammad Azam. As against this, the case of Muhammad Akbar petitioner was that being a traveller with Muhammad Azam in the same boat, he would sink or swim with him as the case being one indivisible whole could not be split without prejudice to his cause.

10. Having considered the evidence on the record, I find that both the petitioners were specifically mentioned in the F. I. R. which position was fully supported by the complainant before the committing Magistrate in his examination-in-chief. Likewise, in her statement before the Police, Mst. Fehmida Begum also implicated both the petitioners giving full support to the prosecution version as originally set out in the F. I. R. Before the committing Magistrate, however, she made a volt face, completely exculpating Muhammad Azam petitioner. At the trial, the possibility of her reverting to her police statement, though remote, cannot be completely excluded from considera tion. Likewise, Asghar Ali complainant might also with draw the concession made by him in favour of Muhammad Azam during his cross-examination before the committing Magistrate. There is, however, yet another possibility and that is of Ms. Kausar the second injured person besides the deceased, being summoned as a witness by the Sessions Judge under sec tion

540. Cr. P. C., though she was not produced before the committing Magistrate. For all these reasons, I am clearly of the view that it cannot be characterised as a case of total absence of evidence The provision contained in section 215, Cr. P. C. cannot therefore be appropriately attracted to the facts of the instant case, In the above view of the matter, the question of the non-applicability of section 34, P. P. C. becomes irrelevant and no specific finding need be given in that regard.

11. The upshot of the discussion, therefore, is that both the petitions fail and are hereby dismissed. Petition dismissed.