P L D 1952 Baghdad﷓ul﷓Jadid 60 (PLP)

ABDUL HAMID MALIK, J.‑The petitioners, Haji and Nawazi, have been committed to the Court of Session on a charge under section 302/34, Pakistan P. C,., for having caused the death of one Mukha Chhina. The petitioners now ask that the commitment should be quashed on the ground that there is absolutely no evidence justifying a commitment. Three prosecution witnesses, Abdul Aziz, Farid and Saidan were produced by the prosecution to prove that the petitioners had caused injuries to the deceased in their pre sence. These witnesses, however, did not support the prosecu tion story. It is worth while to state that Abdul Aziz and Farid are the sons of the deceased, Mukha Chhina. Briefly speaking, there was absolutely no evidence on the record to show that the petitioners were the perpetrators of the murder. The Magistrate, eventually, committed petitioners to the Court of Session to stand their trial under section 302/34, Pakistan P. C. It is vehemently contended by the learned counsel for the petitioners, that there being no evidence on record to justify a commitment, it may be quashed under section 215, Cr. P. C. The learned Government Advocate was constrained to concede that there was no evidence on record against the petitioners. He, however, urged that the absence or insufficiency of evi dence did not render a commitment illegal justifying it being quashed. In support of his argument he referred to Hassan Din v. The Emperor 1931 Lah. 467, where Tapp, J. was of the opinion that the absence of evidence did not constitute a point of law. It may be noted that learned judge dissented from an earlier ruling reported in Ganshamdas v. Emperor 1930 Lah. 545, where Zafar Ali, J., made the following observation :‑ "Where there is no evidence to support the order or commitment, the commitment must be quashed because absence of evidence is a question of law and not of fact." I may further state the ruling of Tapp, J. referred to above was not followed by the Chief Court of Sind in Muniram Manghan Mall and another v. Emperor 1932 Sind 157, and they preferred to follow the observations of Zafar Ali, J. noted above. Under the Code of Civil Procedure a judgment based on no evidence has always been taken as involving a law point. Their Lordships of the Privy Council in Harindra Lal Rai v. S. M. Hardasi Devi and others 1914 P C 67, were pleased to hold that, "A decision that there is no evidence to support a finding of fact is a decision of law." It is therefore clear that the absence of evidence involves a point of law. The learned Government Advocate while admitting there was no evidence on the record and that the Magistrate would have been well advised to discharge the accused under section 209, Cr. P. C., tenaciouly urged that a commitment having been once made under section 213 by a competent Magistrate should be quashed. I may say, that the argument of the learned counsel for the Crown is, on the face of it, a fallacious one for the simple reason that when there is absolutely no evidence on the record against the petitioners then it would be a travesty of justice to allow the trial against them to proceed in the Court of Session. The record Cleary and unmistakably shows that there is not an iota of evidence against the petitioners to support the charge against either of them. I, accordingly, quash the commitment. A. H.