P L D (W (PLP)

Alam v. Emperor A I R 1927 All. 804; Queen Empress v. Chotu 9 All. 52; Muhammad Husain v. Mst. Nanhi A I R 1930 All. 257; Bageshwar v. Emperor A I R 1930 Nag. 108; Zabar Singh v. Ram Sarup A I R 1925 All. 477; Queen Empress v. Balasin natambi and others I L R 14 Mad. 334; Karhley v. Jagannath Prasad A I R 1925 Oudh 180; Kirpa Ram Jagan Nath v. Thakar Hons Raj A I R 1950 E P 18 and Diwan Singh v. Emperor A I R 1933 Lah. 561 ref. S. Afzal Haider for Petitioner. Pir Rafi‑ud‑Din. Shah with Mian Bashir Ahmad for Respon dent. Muhammad Asaf for Advocate‑General for the State. The petitioner Sheikh Abdus Salam was working as income tax practitioner in partnership with Khawaja Abdul Aleem at Multan. Their partnership terminated on the 9th of June 1954 due to serious differences having cropped up between the two, which resulted in civil and criminal litigation. Ultimately, a document (Exh. P. H.) was drawn up, according to which the petitioner Sh. Abdus Salam agreed to pay an amount of Rs. 16,762‑14‑6 to Kh. Abdul Aleem. It was alleged that on the 9th of August 1955 the petitioner Abdus Salam sent for Kh. Abdul Aleem to his office on the pretext that the wanted to pay Rs. 6,000 towards the agreed amount, and when, in response to this invitation. Kh. Abdul Aleem came to the office of the peti tioner between 5 and 6 p.m. on that day, the petitioner and two others pounced upon him and tried to snatch away the valuable document (Exh. P. H.) with a view to destroying it. They did not, however, succeed in doing so, but in the process the document was torn into two pieces. On the basis of these allegations, Kh. Abdul Aleem filed a private complaint against the present petitioner and two of his servants in the Court of Mr. Muhammad Azam, Additional District Magistrate, Multan under sections 392 and 477 of the Pakistan Penal Code. The learned Magistrate, however, discharged all the three of them.

2. During the course of those proceedings before the learned Magistrate, the complainant Kh. Abdul Aleem was murdered after having given his evidence, and the learned Magistrate allowed his brother, Khawaja Mehdi Anwar, to be substituted as com plainant. This Mehdi Anwar went up in revision against the order of discharge, and the learned Additional Sessions Judge, Multan (Ch. Muhammad Ali), set aside the order of discharge and ordered further inquiry under the provisions of section 436 of the Criminal Procedure Code. The petitioner is aggrieved by this order of the learned Sessions Judge, which is dated the 20th of July 1959, and has come up in revision for having it set aside.

3. The main grounds of attack put forward by Mr. Afzal Haider, the learned counsel for the petitioner, are‑ (a) that the proceedings should really have been treated as having abated due to the 'death of the complainant, and (b) that the learned Sessions Judge has not applied correct principles in passing his order for further inquiry, inasmuch as he merely arrived at different conclusions on an appreciation of the evidence, and there is no finding that the order of the Magistrate was perverse or foolish, or that any evidence was left out.

4. As regards the abatement of the proceedings on a private complaint in a warrant case, the relevant section is 259 of the Code of Criminal Procedure, which gives the Magistrate a discre tion to discharge the accused in the absence of the complainant, provided the offence may be lawfully compounded or is not a cognizable offence. The complaint lodged by the deceased. n Khawaja Abdul Aleem purported to be in respect of two offences, namely, one under section 392 and the other under section 477 of the Pakistan Penal Code. The offence under section 392, P. P. C.' is cognizable and not compoundable and, therefore, the complaint could not abate and the accused could not have been discharged by the trial Magistrate under section 259 simply duel to the absence of the complainant. It was, therefore, not necessary to have a substituted complainant in respect of this offence, but the offence under section 477, although not compoundable, is non‑I cognizable and, therefore, Magistrate could have acted under section 259 to discharge the accused in the absence of the complainant, and for that reason it was perhaps considered necessary to substitute the deceased complainant's brother, Khawaja Mehdi Anwar. In Muhammad Azam v. Emperor (A I R 1926 Bom. 178) it was observed that in case of .a non‑cognizable offence, institutes D upon a complaint, the maxim of action personalis moritur cum persona, in civil law confined to torts, does not apply, and the trying Magistrate has discretion in proper cases to allow the complaint to continue by a proper and fit complainant if the latter is willing. The same view was taken in Panchu Swain v. Emperor (A I R 1943 Pat. 379) It seems to me that the trial Magistrate exercised, his discretion properly in allowing the substitution of the complainant's brother to carry on the complaint in view of the large amount involved in the transaction evidenced by the document Exh. P. H. There was no reason for the learned Sessions Judge to interfere with that discretionary order. The proceedings have not abated due to the substitution of the complainant allowed by the Magistrate.

5. As regards the second ground of attack, the learned counsel for the petitioner has referred me to a number of autho rities, mostly from the Indian High Courts which may be briefly noticed. In Alam v. Emperor (A I R 1927 All. 804), the principle was laid down that if the circumstances and the evidence are such that two different Courts might take two different views of the evidence and the order of discharge is one which cannot be said to be either perverse or prima facie incorrect and there is no suggestion that any further evidence is forthcoming, no further inquiry should be directed under section 437 (which is analogous to section 436 of the present Criminal Procedure Code). In the body of this judgment, reference was made with approval to a Full Bench case of the same High Court as Queen Empress v. Chotu (9 All. 52). The same princi ples were reiterated in Muhammad Husain v. Mst. Nanhi (A I R 1930 All. 257). Again, in Bageshwar v. Emperor (A I R 1930 Nag. 108), it was observed that even misapprecia tion of the evidence by the trying Magistrate will not in law justify the District Magistrate in setting aside the order of discharge which can only be done if there is either irregularity or illegality in the proceedings. Finally, in Zabar Singh v. Ram Sarup (A I R 1925 All. 477), it has been observed that mere difference in apprecia tion of evidence by the revisional Court is not a good ground for setting aside an order of discharge.

6. Basing himself on these authorities, Mr. Afzal Haider has contended before me that the trial Magistrate recorded all the available evidence, that he examined the evidence in detail and came to the conclusion that no prima facie case was made out against the present petitioner and his co‑accused and, therefore, he discharged them, but the learned 'Sessions Judge, in revision, has arrived at a different appreciation of this very evidence. There is no finding by the learned Sessions Judge that the order of discharge passed by the Magistrate is perverse or foolish or that any additional evidence is to be recorded. It appears to the learned counsel that there is, therefore, no justification whatsoever to order further inquiry within the meaning of section 436 of the Criminal Procedure Code. He has also urged that even on facts the order of discharge is justified, as there was admittedly enmity between the parties and the complainant has fabricated a false case which is not supported by reliable evidence.

7. On behalf of the respondent, Mehdi Anwar, and the State, reference is made to several other authorities in an endeavour to define the true scope and application of the present section 436 of the Criminal Procedure Code. For example, in Queen Empress v. Bulasivaalambi and others (I L R 14 Mad. 334), while discussing the term "further inquiry," the Full Bench of the Madras High Court observed that "the term `enquiry' is not in its ordinary acceptation restricted to the mere taking of evidence, but it includes also a consideration of its effect in relation to the complaint forming the subject of the enquiry. This being so, it is not clear why the expression "further enquiry" should not signify as well a fresh consideration of the effect of the evidence already recorded as a supplemental enquiry upon fresh evidence."

8. Again, in Karhley v. Jagannath ‑Prasad (A I R 1925 Oudh 180) it was laid down that "a revising Court has power to order further enquiry even when the subordinate Magistrate has recorded all the evidence of the prosecution. Where the Sessions Judge after going carefully into the evidence came to the conclusion that the finding of the Magistrate was either perverse or in all propability wrong or manifestly at variance with the evidence which he has recorded and where this was his considered opinion the High Court refused to hold that his order directing a further enquiry was illegal, improper or incorrect." To the same effect are observations contained in a comparatively recent ruling of the East Punjab High Court, namely, Kirpa Ram Jagan Nath v. Thakar Hans Raj (AIR 1950 E P 18), where Harnam Singh, J. has observed that when the Sessions Judge acting under section 436 has exercised a discretion vested in him by law, it is not open to the High Court to interfere with the exercise of that discretion unless it comes to the conclusion that the order passed under section 436 is perverse.

9. Finally, reference may be made to Diwan Singh v. Emperor (A I R 1933 Lah.561), where Tek Chand, J. took the view that in an appropriate case the Sessions Judge has the power under section 436 to set aside an order of discharge passed by the Magistrate, even though no additional evidence is sought to be produced. He went on to observe that generally speaking, further enquiry after discharge is improper unless the order of discharge was perverse or foolish. Another observation made by the learned Jedge was that where a man is discharged under circumstances which make the order of discharge equivalent to one of acquittal, no further proceedings should be ordered to be taken against him under section 436.

10. On a consideration of the various authorities cited at the Bar by both sides, it seems to me that an essential pre requisite for the exercise of the revisional powers under section 436, Criminal Procedure Code, is that the order of discharge should bt perverse or foolish. But further enquiry does not necessarily mean the recording of additional evidence. It has rightly been interpreted by their Lordships of the Madras High Court in the Full Bench case, referred to above, as including a re‑consideration of the existing evidence in relation to its effect on the complaint forming the subject‑matter of the enquiry. It would appear, therefore, that where the Sessions Judge, acting in revision, finds that the order off' discharge proceeds from a misreading and misapprehension of the evidence on the record and amounts to a perverse or foolish order, the Sessions Judge, or the District Magistrate, as the case may be, would be acting within the jurisdiction conferred on him by section 436 of the Criminal Procedure Code in ordering further enquiry. Finally, the principle also emerges that the High Court would be reluctant told interfere with the discretion so exercised by the lower revisional Court.

11. As judged in the light of these principles, I find that the order passed by the learned Sessions Judge is sustainable. I do not wish to dilate on all the facts of this case and to give my views as to the credibility of the evidence produced by the complainant against the present petitioner and others, as that might tend to prejudice them in the trial Court. Suffice it to say that I agree with the observations of the learned Sessions Judge that there had been a misreading of the evidence by the trial Magistrate, and the reasons given by him for discarding the prosecution witnesses are quite incorrect. Although the learned Sessions Judge has not said so, the conclusion is clearly implied in his reasoning that the order of discharge passed by the trial Magistrate is perverse on the basis of the evidence on the record. I find myself in agreement with this reasoning and I consider that there is no justification at all for me to interfere. The learned a Sessions Judge has rightly exercised the jurisdiction vested in him under section 436 of the Criminal Procedure Code and his order is upheld. The revision petition is rejected. A. H. Petition rejected.