1975 P Cr (PLP)

JUDGEMENT This revision petition directed against the order of Ch. Muhammad Shaft, Sessions Judge. Sahiwal, dated 30th of June 1973, by which he upheld the order dated 7th of November 1970, passed by Mr. Muhammad Aslant Virk, Magistrate Section 30, Sahiwal, ordering the discharge of Bakhtiar and Akbar respondents in case in which they were charged for commission of offences under sections 302 and 307, P. P. C.

2. The two respondents along with their co‑accused, Shah Muhammad, faced an inquiry for the murder of four persons, namely, Rehmat Ali, Muhammad Sharif, Nur Jamal and Mst. Mehar Nishan, as also for making a murderous assault on Mst. Nur Jahan and Jalal Din P. Ws.

3. There was election rivalry between Bakhtiar respondent on the one hand and Rehmat Ali deceased on the other as both of them intended to contest the election which was scheduled to be held in 1969. A Tehsilar came to verify the list of voters at Chak Sandhe Khan and there was an argument between the parties. Some votes registered at the instance of Bakhtiar respondent were got cancelled by Rehmat Ali deceased. This created heat and there was an altercation and exchange of abuse between the parties. It is alleged that Bakhtiar and Akbar respondents held out a threat to Rehmat Ali that he would be transported to the next world to press his claim for membership to the Basic Democracy.

4. The occurrence took place on 9th of March 1969. Usman Khan Sagla and Ghulam Rasul Joya, who have appeared as P. Ws. 5 and 6 before the Magistrate, had come to offer condolence on the demise of one Ghulam Rasul who was related to Flak Sher P. W. They had stayed for the night at the dera of Rehmat Alit deceased at his insistence. In the morning, Rehmat Ali deceased and Wali Muhammad, the first informant were proceeding to see off their two aforesaid guests. When they passed by the house of Shah Muhammad accused, they saw him present near a wooden fence, carrying a gun. The two guests were going ahead with Wall Muhammad while Rehmat Ali deceased was behind them at some distance. They heard Shah Muhammad hurl an abuse at Rehmat Ali deceased and then firing at him. Rehmat Ali fell down. Muhammad Sharif deceased then cam‑ to the spot and bent upon Rahmat Ali perhaps to lift him from the ground when Bakhtiar and Akbar respondents who were present nearby, shouted that Sharif was a Munshi of Rahmat Ali and should be finished. Shah Muhammad fired at Muhammad Sharif as well. Nur Jamal deceased, who happened to be in the mosque came forward and asked Shah Muhammad to desist from further firing. Bakhtiar and Akbar respondents again goaded Shah Muhammad to fire at Nur Jamal also as he was a party man of Rehmat Ali, Shah Muhammad complied. by firing at Nur Jamal. While this indiscriminate firing was going on, Mst. Mehar Nishan who was related to Nur Jamal, and her daughter‑in‑law Mst. Nur Jahan came out of their house. They went straight to Nur Jamal and Mist. Mehr Nishan abused Shah Muhammad who in a fit of rage fired at Mist. Mehar Nishan also and some of the pellets hit the palm of Mst. Nur Jahan. After the com mission of the offence, the three accused went to the tube‑well which belongs to Bakhtiar and Akbar respondents, and is at a distance of two klllas from the place of occurrence. The accused were chased by one Jalal but Shah Muhammad fired at him also Jalal returned the fire and Shah Muhammad received an injury.

5. The first information report Exh. P. A. was lodged by Wali Muhammad (P. W. 1) at 8‑15 a.m. in Police Station Malkkahans which is at a distance of three miles from the place of occurrence. In the F. I. R. all the spots have been attributed to Shah Muhammad. The first informant after making a full narration of facts as to now the four persons met their death and as to how Mst. Nur Jahan was injures, stated that Shah Muhammad had committed the crime "in consultation with Bakhtiar and Akbar respondents." He further stated that Bakhtiar and Akbar wire present at their tube‑well and were seen by Ismail and Jaial Cain Sukhera. At the inquiry however, it was alleged that Bakhtiar and Akbar were standing armed with guns behind a wall nearby, and by raising lalkara instigated Shah Muhammad to go on firing at his victims. The other eye‑witnesses also adopted this version. Only Jalal Din (P. W. 3) stated that he had not seen Akbar and Bakhtiar respondents near the place of occurrence. He was declared hostile and was cross‑examined. It may also be noticed that while Usman Khan P. W. stated that tae two respon dents were standing at a distance of four to five karams from the place of occurrence. Ghulam Rasul P. W. stated that they had taken their stand near the mosque behind a wall at a distance of 20/25 kararrrs.

6. The learned Magistrate by a rather laboured and lengthy order discharged the two respondents and continued Shah Muhammad to stand his trial before the Court of Session the learned sessions Judge agreed with the findings of the learned Magistrate. The learned Sessions judge observed that the F. I. R. did not connect the respondents wan the cri no, that there was no indication in the inquest report of the fact that the r; sp indents ware present at the spot at the time of the incident acid that the police in their report under section 173, Cr.P.C. found both the respondents to be innocent.

7. It was argued before me that the learned Magistrate proceeded to discuss the case as if he were a trial Court and entered into an appraisal of evidence in a manner not permissible to an Inquiry Magistrate. Tat learned counsel submitted that the prosecution witnesses had consistently stated that the two respondents were present at the spot and had instigated send exported their co‑accused to commit the crime. It was urged that the committing Magistrate is to weigh the evidence only for the purpose of finding a9 to whether there is a prima facie case against the accused persons, and he cannot arrogate to himself the functions of the trial Court.

8. There is no doubt that the learned Magistrate wrote a lengthy order and it appears from the phraseology used by him as if he arrogated to himself the role of the trial Court. The question however is whether in substance the order, so far as it relates to tae two respondents, is illegal and perverse the first informant, who happens to be a brother of Rehmat Ali deceased and had strong reasons to be inimical to the two respondents, did not state in the first information report that they were present near the spot and were exhorting their co‑accused. Wali Muhammad, with all the background of enmity between the parties, could not have missed the fact of the presence of the respondents if he had actually seen them, All that he said was that the murders had been committed with the connivance of the two respondents and that they had been earlier seen at their tubewell by two witnesses, Jalal Din P. W. who is a brother of Nar Jamal deceased categorically stated that he did not see the two respondents near the spot at the time of the occurrence. He had no reasons to protect them if they were actually there.

9. The question is whether this evidence, which ran radically counter to the first information report, and which was introduced some time after the foundation for the entire case had bean laid out, could have carried conviction with the trial Court and been made the basis for the conviction of the respondents. It was observed by their Lordships of the Supreme Court in Qadar Bakhsh and 3 others v. The State (P L D 1971 S C 694) that the committing Magistrate has the jurisdiction to discharge the accused under section 209, Cr. P. C. where the prosecution evidence fails altogether and no believable evidence even prima facie has been adduced by the prosecution to connect the accused with the crime of murder as alleged against him. If a Magistrate comes to the conclusion that the evidence against the accused requires appraisal, he ought to commit the accused, but if he comes to the conclusion that the evidence for the prosecution is such that no tribunal whether a Judge or jury could be expected to convict the accused, then he ought to discharge him. It was observed in Ramchandra Babaji Gore v. Emperor (59 Bom. 125): "Where, however, the evidence is wholly untrustworthy and the Magistrate is satisfied that it cannot lead to a conviction, he would be perfectly justified in discharging the accused."

10. The Magistrate discharged the two respondents because he found that their conviction was improbable: The State has not challenged the order of discharge. The Sessions Judge has agreed with the findings of the Magistrate. The prosecution having radically departed from the story as initially narrated in the F. I. R. the possibility of their evidence, in so far A as the complicity of the two respondents, carrying conviction with the trial Court, would be very remote.

11. In the circumstances of the case I find that no interference on the part of this Court is called for. The two respondents were rightly discharged. The revision petition is dismissed. Petition dismissed.