P L D 1962 Supreme Court 480 (PLP)

CORNELIUS, C. J.‑

This appeal by special leave calls in ques tion the correctness of an order made by a learned Single Judge of the Dacca High Court in revisional jurisdiction, refusing to interfere with an order of a Committing Magistrate who had discharged the accused‑respondents in a case of riot with murder. There has been deplorable delay in the disposal of this fairly normal case, resulting from a land dispute. The occurrence took place on the 12th April 1958, at a short distance from the Border Police Post at Ghona, and a number of members of the garrison ran to the spot, and stopped the fight. The time of the occur rence being 9 a.m., a report was made at the Thana 12 miles away at 4‑30 p.m. the same day, not by any of the persons involved in the occurrence, but by one of the constables from Ghona Police Camp, named Khajamuddin. Although it purports to give details, the report is quite clearly based on hearsay in regard to most of the particulars. It states that persons from the Post surrounded the participants in the riot, and "arrested tactfully the accused persons", but there seems to be some doubt on this point, for the principal prosecution witness? Mazharul Haq, who is the appellant in this case, stated that when the Ghona Police came to the spot, "the accused persons fled away leaving behind some of their weapons". As the Ghona Police would not have been able to differentiate between the members of the two parties, the error was natural. Two men were found injured lying on the spot, namely, Abdul Jabbar Molla and Azimuddin Molla, of whom Abdul Jabbar Molla died in the Camp as a result of a deep punctured wound in the chest. Three other persons including Azimuddin were injured on the side of the complainants whose injuries were proved by a Doctor at the enquiry. Besides the Doctor, the Committing Magistrate examined Mazharul Haq (who had no injuries), Azimuddin, Ismail Gayen, and Abdul Hossain who were injured, Hanif Gayen, who was one of the party of Mazharul Haq, Muntaj Molla and Sayen, who had gone to the spot, as they said, for a salis and one Ozihar who deposed that the actual assault took place in his land. Evidence was given by the Investigating Officer, Abdul Khaliq to the effect that he seized blood‑stained earth and straw from the land of Kauser Gayen, who is the father of the aforesaid Ozihar. It was put to Abdul Khaliq that the actual place of occurrence was field No. 659 and not Oziher's field which is No. 4337, and he denied it. As the question was put, it might appear to have been addressed to an eye‑witness, but obviously the meaning behind the reply is that nothing was made to appear to the Investigating Officer from which he could conclude that the clash took place in field No.

659. The record before us shows that, without examining the accused persons, the Enquiry Magistrate received evidence on their behalf, namely, the statement of Eradatullah, D. W. 1, and Abdur Rahman, D. W. 2; who deposed regarding plot No. 659, its ownership and possession. Eradatullah said that the Zamin dar had granted a kabuliyat of the land in favour of the accused persons, while Abdur Rahman deposed that in his presence, the appellant Mazharul Haq had executed a deed of relinquishment in respect of the same land in 1942. On the 4th December 1958, the Enquiry Magistrate discharg ed the accused persons. Early in his order, he made the follow ing observation, which was by itself a sufficient reason to induce him to forward the case for trial to a competent Court:‑ "The death of Abdul Jabbar is a hard undisputed fact. The occurrence too appears to have been proved by the P. Ws." But after making this sound remark, the Magistrate went on to say that the "defence contends" that the occurrence took place on ' plot No. 659 which was in their possession and that the accused persons had "to resort to force just by way of exercis ing the right of private defence". He mentioned also that medical certificates of injuries to three of the accused persons had been placed before him. Mazharul Haq had claimed to be in possession of plot No. 659, but the Magistrate relying on the deed of surrender observed that this "gives rise to a reasonable doubt as to the possession of the disputed land". As regards the prosecution case that the fight took place in plot No. 4337, he observed that the Investigating Officer "instead of throwing light on this vital point, has made confusion worse con founded" and that he had "investigated the case in a slipshod manner which has damaged the entire prosecution case". Upon these findings, he came to the conclusion that "the occurrence took place in plot No. 659 in the possession of the accused persons, who exercised their right of private defence when P. W. 2 (Mazharul Haq) and his men tried to take possession of the same forcibly". (The italics are ours). He accordingly discharged the accused persons. It is important to note here that the accused persons, at no stage, set up a formal plea of private defence. The nearest approach to such an effort appears from a negative statement made by Mazharul Haq in the course of his cross‑examination, as follows :‑ "It is not a fact that the occurrence took place in plot No. 659 on our protest. Nor is it a fact that my men assaulted the accused persons." Earlier, Mazharul Haq had admitted that "the accused persons were ploughing the disputed land on the date of the occurrence", but said that his party "gave them no obstruction". Against the order of the 4th December 1958, a revision peti tion was moved in the High Court and a learned Single Judge by order dated the 19th January 1960 remanded the case to the Enquiry Magistrate in order to "ascertain whether any grounds have been made out for commitment of the accused". The object of the order in the main appears to have been to require the Committing Magistrate to satisfy himself that certain prin ciples laid down by this Court in the case of Hariballav Shaha Roy v. Gopi Ballav Shaha ((1959) 1 P S C R 217 : P L D 1959 S C (Pak.) 347) had been duly observed. The case, on remand, was dealt with by the same Magistrate, who repeated his earlier findings, in slightly clearer terms, viz. (a) that the occurrence took place in plot No. 659, (b) that this plot was in the possession of the accused persons who were ploughing it, when the complainants trespassed on the land and a fight ensued, in which both parties received injuries, and (c) that the accused persons "obviously" exercised their right of private defence of property and life. As to his powers as a Committing Magistrate, he declared that his Court was "certainly competent to appreciate the evidence on record simply to ascertain how far there are sufficient grounds for committing the accused persons for trial". He accordingly discharged the accused persons again. This order was made on the 27th May 1960, and was followed by a petition for revision to the Sessions Judge at Khulna which was dismissed on the 3rd September 1960. The Sessions Judge emphasized the following points viz. :‑ (a) that the prosecution had not placed a true picture of the occurrence before the Court, but there had been substantial concealment of facts ; (b) there was no clear evidence as to the place of occurrence, or how it took place ; and (c) there was doubt as to whether the complainant party was in possession of the land. For some of these findings, the Sessions Judge used the initial report, which was clearly not worthy of the least reliance in regard to the details of the dispute. He concluded by saying that :‑ "In short, the evidence on record is such that no Court or Assessor could be reasonably expected to pronounce a verdict of conviction". The matter was then taken before the High Court and on the 12th January 1961, the rule which had been issued was discharg ed. The contribution made by the learned Single Judge to the appreciation of the case is of the slightest possible charatter. After reproducing a passage from the Supreme Court judgment mentioned above, he proceeded to observe that "all the facts and circumstances of the case together with the evidence adduced by the parties" had been duly taken into consideration by the Courts below. He noted that the Enquiry Court had recorded findings as to possession of the disputed land, as to the place of the occurrence being uncertain and that the accused party had the right of private defence of property and person. After stating the views of the Sessions Judge, the learned Single Judge finally made the following small personal contribution towards the conclusion of the matter, viz:‑ "I have been taken, through the relevant evidence, and in my opinion too, it is too discrepant and unsatisfactory to justify a reasonable expectation of the case ending in conviction of the accused". Thus, the final result of these five proceedings before three Courts extending over a period commencing the 8th November 1955 and concluding on the 12th January 1961, is that the Courts have refused to bring to trial a case in which the death of a man "is a hard undisputed fact" and in which it has been admitted from the outset that "the occurrence too appears to have been proved by the P. Ws." Although, it is now more than four years since the occurrence and it may well be that evidence which was available earlier to illuminate all the facts and circumstances of the incident may now not be available, yet we find it impos sible, consistently with the duty and jurisdiction entrusted to us to withhold our hands from interfering with the order made in this case by the learned Single Judge. Firstly, it is essential for the proper maintenance of the criminal jurisdiction that a serious crime of this nature should be brought to trial before a competent Court, and that questions of fact arising therein should not be allowed to be decided by a Court of enquiry whose only function is to satisfy itself that there is a prima facie case against the accused persons, and to set out the case so found in a committing order, supported by a formal charge, upon which the trial can proceed. Secondly, we should indicate the fundamental flaws which have led to this unfortunate refusal by the Courts to perform their duty in this case. The proceedings in the case hitherto appear to have been inspired solely by a desire to assert the authority of the Enquiry Magistrate to examine and appreciate the evidence led before him. That authority has the support of the decision of this Court in the case cited above. But neither that judgment nor any other judgment of any Court can possibly avail to give jurisdiction to an Enquiry Magistrate to try and offence of a murder. In other words, if there be questions of fact or of law upon which the prosecution and the defence are at issue in such a case, the decision upon such issues can only be reached by the Sessions Court. The judgments hitherto delivered in this case clearly show a disposition to confuse the conception of a point in issue with the conception of a "doubt" or "reason able doubt". In his very first order the Magistrate has used the expression "reasonable doubt" and we find that in that order as well as in his subsequent order, he has taken it upon himself to give definite findings regarding all the points in issue which had been raised before him, viz., as to the place of the occurrence, as to the possession in respect of that place, as to who were the trespassers and aggressors and as to the exercise of the right of the private defence. Now, the concept of a "reasonable doubt" operating in favour of an accused person only begins to apply at a stage when the full evidence on both sides in regard to a point in issue has been placed on record, and such evidence being considered as a whole, the Court is still left in a state of doubt as to what the answer should be, such doubt being a "reasonable doubt". To say so much is sufficient by itself for excluding altogether the possibility of a Committing Magistrate ever being a judge of "reasonable doubt", for the faculty of deciding upon any point `' in issue has not been conferred upon him. The existence of two opposing versions, on any point of fact arising in such an enquiry, or of opposing view‑points on any question of law, is by itself a sufficient ground for the Magistrate to com mit the case for decision to a competent Court. Where the accused persons do not raise any such contention at the commit ment stage, the duty to commit is of course, plain, since the offence of which a prima facie case is thus made out is beyond the competence of the Enquiring Magistrate to decide, A case is conceivable where the prosecution evidence fails altogether, and quite plainly, to make out a prima facie case, and there, of course the Magistrate would discharge. But what appears to have been accepted by all the Courts . in this case hitherto is that if the defence, on any question of fact, which forms an ingredient of the case, sets up a different version, the effect is to annul even the prima facie case, on the ground of "reasonable doubt". The correct position is that the matter is placed in issue between the parties, and becomes fit matter for trial by a competent, Court, which alone can allow the benefit of "reasonable doubt" and then only after having heard the case in full. A more grave error than that of confusing the functions of a Committing Court with those of a trial Court by interposition of the rule of "reasonable doubt" at a stage when the case has not even been formulated, it is difficult to conceive. It should have been evident to the Sessions Court, and even more so to the learned Single Judge in the High Court, that the Committing Magistrate had exceeded his jurisdiction by recording clear findings on three questions of fact which were questions in issue between the parties, and formed an essential part of the case which could only be appropriately tried on charges which fell within the exclusive competence of a Sessions Court. We regret to find that the learned Single Judge has instead gone to the length of saying that there can be no reasonable expectation of, this case ending in a conviction. Now such a conclusion can be reached upon preliminary evidence led in an enquiry, in, regard to an occurrence which had been held to be duly proved, we find it difficult to see. Until full evidence has been led at a proper trial, no speculation is even permissible as to whether or not any assessor or any Judge can be found who will record a verdict of conviction. The seriousness of the error into which the Courts below have successively fallen is further emphasised by the readiness of each Court to accept and allow in favour of the accused persons a right of private defence of life and property in a case where (a) the plea of private defence had never been formally raised by the accused persons, and (b) the stage at which such a plea could be raised namely, when a charge of the major offence had been brought against them had not yet been reached. The Courts below have given to the accused persons the benefit of a belief' that certain of them had received injuries without those injuries being proved, merely on the basis of medical certificates placed before them. These errors are sad indications of the superficial and irresponsible manner in which important questions arising in cases of serious crime are being treated by the criminal Courts. It is perfectly clear that the function of examining a plea of private defence raised against a charge of a particular crime, can only be tried and adjudicated upon by a Court which is competent to try that particular crime. Moreover, the adju dication involves a thorough examination of all the circumstances to determine at what stage, if any, the right of private defence arose, and when it ended, and whether in its exercise, there was any excess of the limits imposed by law and finally, if there was such excess, what punishment would be appropriate. In the circumstances of the present case, the Committing Magistrate was grossly in error when, on merely speculative grounds, he record ed the positive finding that "the accused persons obviously exercised their right, of private defence of property and life", a finding of mixed fact and law which was, besides, wholly outside his jurisdiction. It has caused us grave concern to find that patent and inexcusable errors and excess of this kind have receiv ed only complacent approval from the two superior Courts before which they were brought for correction. These are the fundamental defects, and to them may be added that the consistent view of the three Courts below that, on‑the record, there is uncertainty as to the place of the occurrence seems to us to be based on disregard of the record. The usual and the best proof as to the scene of a clash in which blood has been shed, is the finding of blood on the ground or on the plants at a particular spot, and here there is clear proof furnished by the Investigating Officer that such signs were found in the field of Ozihar which is No. 4337. It is clear that the dispute between the parties related to field No. 659, and there is room for the view that the case for the complainants is not as strong as that of the accused in this dispute, but that is not, in the absence of further evidence, sufficient to show that the clash also took place in that field. The prosecution case, to support which evidence was led, was that after a quarrel, the complainants called in non‑partisan persons, to make a salis and it was with that object that both parties had moved away from field No. 659 and had reached field No. 4337, when the clash occurred. There is no direct evidence to contradict or refute the statements of the pro secution witnesses on this point. Relying solely upon questions put in cross‑examination to the prosecution witnesses; suggestive of the defence case, the Courts below have concluded that there was uncertainty as to (a) the origin of the fight, and (b) the place of the occurrence. The correct position is that on the evidence so far led, the prosecution have attempted to make out a prima facie case of a clash, as indicated above in Ozihar's field, and the appropriate course for obtaining a proper statement of the defence version is by allowing the accused persons to explain the facts appearing against them. They may choose to put forward their full pleas at the commitment stage, or they may reserve their case to be presented in full at the trial. But to declare, on the present state of the record that there is "uncertainty" as to the origin of the fight and the place of the occurrence is clearly to prejudge the matter, and so to frustrate the processes of justice. We regret to find that the learned Single Judge should have emphasised the existence of discrepancies in the evidence. From among the earlier judgments it is only in the judgment of the Sessions Judge that there is mention of discrepancies and those are based upon differences between the initial report and the statement of Mazharul Haq. As has been pointed out the initial report was not by an eye‑witness and apart from the fact that it is never substantive evidence in any case, in the present I case, it was also to be discounted on the ground of pure hearsay. For these reasons, and although it is now more than four years since the commission of the alleged crime, we feel obliged to allow this appeal, so that justice may be done by a competent Court in the case presented by the appellant against the respondents. We direct that the case should be sent back to the Com mitting Court, to be duly committed for trial at Sessions, in,, .accordance with law. In all the circumstances, it would be best that the Magistrate should be a person other than Mr. M. Haq, whose two orders show clearly that he has firm convictions as to the facts of the case, which may militate against his taking a balanced view of his functions in respect of the case. A.H. Appeal allowed.