P L D 1954 Baghdad﷓ul﷓Jadid 30 (PLP)

ABDUL HAMID MALIK, J.‑The Petitioners, Khera and his three sons, whose names are noted above have been committed to the Court of Sessions on charges under sections 302 and 325 read with section 34 P. P. C., for having caused the death of Ghulam Muhammad. The deceased Ghulam Muhammad was also the son of the petitioner, Khera, and step brother to the remaining three petitioners. One Ghulam Qadir P. W., at whose instance the F. I. R. was lodged, deposed in the Court of Committing Magistrate that the petitioners, in his very presence, had perpetrated the murder. The other prosecution witnesses however, did not corroborate the version of Ghulam Qadir P. W. The Committing Magistrate, eventually committed all the four petitioners to the Sessions. The committal order which is written in a very slovenly manner runs as follows :‑ "Qadir Bakhsh P. W. has fully corroborated the F. I. R. and has stated that the accused Khera etc., inflicted injuries on the deceased‑it is correct that there is no evidence on record except of Qadir Bakhsh P. W. implicating the accused. However there is no cogent ground for this Court, at this stage, to brush aside the incriminating statement of Qadir Bakhsh. This witness, Qadir Bakhsh, is an eye‑witness who saw the occurrence, and the' accused killed the deceased in his very presence. Hence, relying on the statement of Qadir Bakhsh the charges under section 302 and section 325/34 P. P. C. are framed against the accused, And as the offences are exclusively triable by the Court of Session the accused are committed to the Sessions to take their trial". The petitioners now ask that the commitment should be quashed on the ground that there is not sufficient evidence to justify the commitment. This petition first came up for hearing before the learned Chief justice who considering that the order of commitment, in the present case, was loosely worded and that there was divergence of opinion on the point whether or not the absence of evidence to justify a commitment was a point of law within the meaning of section 215 Cr. P. C. referred the questions involved in the petition to the Full Bench for decision. The specific points on which we are asked to give our findings are as follows :‑

1. Can the High Court quash: a commitment when the order of the Committing Magistrate does not disclose any grounds for it ?

2. Can the High Court go into evidence for seeing whether it disclosed any ground for commitment ?

3. Can the High Court quash the commitment on the ground that there is no evidence worth the name on record to sustain the charge ?

4. What is the effect of quashing the commitment i.e. does it ipso facto operate as a discharge or acquittal of the accused concerned ? The wordings of section 213 clearly enjoins upon a Commit ting Magistrate to record briefly the reasons for commitment. The point arises whether in the absence of any reason for commitment, the order can be quashed by the High Court under section 215 Cr. P. C. which reads as follows :‑‑ "A commitment once made under section 213 by a competent Magistrate or by Civil or Revenue Court under section 478 can be quashed by the High Court only and only on a point of law:- I may say that, in the present case, the Committing Magistrate has given some reasons for commitment. It cannot therefore be stated that the committal order does not disclose any ground for it. The Magistrate has stated in his order that he does not think it expedient to brush aside the evidence of Qadir Bakhsh P. W. All that we have to see now is whether the finding of the Magistrate is capable of sustaining the charge he has framed and on which the commitment to the Court of Session is made. It does transpire from the record that the evidence of Qadir Bakhsh P. W. implicates the petitioners in the offence. That being the position, it cannot be urged that there is no evidence on record justifying the framing of the charges. It is conceded by the counsel, Sh. Nisar Ahmad, Advocate, who represented the Bar and has appeared amicus curiae that there is some evidence on the judicial record against the petitioners. It was however urged by him that the evidence of Qadir Bakhsh P. W. was in direct conflict and hopelessly contradicted by the statement of remaining three witnesses who appeared for the prosecution. Be that as it may, it is not denied that there was some evidence on record to implicate the accused in the offence. That being the position, it cannot be urged that there was absolutely no evidence on record to justify the framing of the charge against the accused. In this connection reference may be made to a Division Bench ruling of the Lahore High Court reported as 1933 Lah. 39, where Their Lordships were pleased to make the following observations :‑ "Section 215 Cr. P. C. precludes High Court from quashing commitment, unless it is opposed to law or that there is any point of law involved which must necessitate the quashing of the commitment". The facts in the above noted case were that the Committing Magistrate had framed a charge against one Muhammad Khan on the ground that there was some evidence against him, though there was other evidence on record which was in his favour. On revision under section 215 Cr. P. C the High Court, refused to quash the commitment on the ground that there was some evidence on the record 'against the accused which justified the framing of charge. It therefore appears that the ruling referred to above is on all fours with the circumstances of the present case and as there was some evidence on record against the present petitioner, the High Court is precluded from quashing the commitment. It may be stated that it is not the function of the High Court at this stage to minutely weigh or appraise the evidence to see whether or not the evidence on record is sufficient to entail conviction of the accused. There is some sharp division of judicial opinion on the point whether the absence of evidence is a point of law. The perusal of the various rulings cited at the Bar convinces us that the preponderance, of opinion is that the total absence of evidence to justify a framing of a charge is a point of law within the meaning of section 215 Cr. P. C. Reference in this connection may be made to 1932 Sind 157, 1930 Lah. 545 and 1952 B. J. P L D

60. All the rulings refer red to above are based on the sound principle that in the absence of evidence on record against the accused, it would be a mockery to allow the trial to proceed against them in the Court of Session. The latter ruling is by me sitting as a single judge of this High Court where, after discussing various authorities relating to the point I had observed that "when there is absolutely no evidence on record against the petitioners it would be travesty of justice to allow the trial against them to proceed in the Court of Session and the commitment must be quashed. Absence of evidence involves a point of law" I still adhere to the same opinion. Needless to add that Their Lordships of the Privy Council in 1914 P. C. 67, were pleased to hold that "a decision that there is no evidence to support a finding of fact is a question of law". It therefore follows that when there is no evidence to support the charge it will be the bounden duty of the High Court to quash it under section 215 Cr. P. C. I may say that I an not at all impressed with those rulings which lay down that the absence of evidence is not a point of law. In this connection reference may be made to 1931 Lah. 467, where Tapp J. was of the. opinion that absence of evidence is not a point of law. I can only say;' with due respect to the learned judges that it does not lay down correct law. Again in 2 Criminal Law Journal 534 (547) His Lordship (Mr. Justice Harington) was pleased to lay down the following test :‑ "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 evi dence 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 favor, prisoner might be‑then the committal was proper". It is therefore obvious from the above observation of the learned judge that if there is some evidence which called for an answer then committal was justified. In the present case, it has already been noted that there was; some evidence against the accused. Applying the above test it can safely be held that the committal to the Sessions was not illegal. Reverting to the question No. 1 referred to us for decision I may say that where offence is triable by the Sessions Court and by a Magistrate, the latter can commit the accused to the Sessions only if he is of the opinion that the case ought to' be tried by the Sessions Court. He must give reasons for entertaining that opinion. Reference may be made to 1914 Bom. 237, where it was laid down that :‑‑ "In a case of this kind where the trial may either be by the Magistrate himself or by the Court of Session I think that reasons for commitment must include not merely reasons for not discharging the accused, but reasons for sending him before the Court of Session. There has therefore been a failure to comply with the law. This, no doubt, would amount to no more than an irregularity if the case were one which plainly ought to be committed to the Sessions". It is therefore clear that if a Magistrate commits a case to the Sessions in the ordinary way for the reasons that the case is exclusively triable by the. Sessions Judge then the omission to disclose any ground in the order of the committing Magistrate would only amount to an irregularity and not to an illegality. Under Section 215 Cr. P. C. the commitment can only be quashed on a lave point. Hence any irregularity‑in the order of committing Magistrate in a case which is exclusively triable by the Court of Session does not empower the High Court to quash it under section 215 Cr.P.C Assuming that the order of the committing Magistrate does not disclose any‑ground for it, it will be the duty of the High Court to go into the evidence with a view to decide whether or not evidence on the record justified the, framing of the charge. If the order is "irregular, necessarily the evidence on record would have to be looked into for seeing whether the finding of the committing Magistrate can sustain the charge. To make the position clear, supposing a committing Magistrate commits a case to the Court of Session without alluding to the evidence on record, it will be then the function of the High Court to go into the evidence and to determine whether there are cogent grounds for the committal. For the foregoing reasons my answer to the first question referred to us for adjudication is in the negative and to the second and third is in the affirmative. With regard to the last question, the position is quite clear namely when the commitment is quashed the charge is vacated, which means that the accused stands discharged. The ordinary dictionary meaning of the word "quash" occurring in section 215 Cr. P. C. is "to set aside or remove". It therefore follows that when the charge or charges are set aside then the only order which can be passed in favour of the' accused is "discharge"; The word "acquittal" always follows the charge and never precedes. Hence the effect of quashing the commitment would ipso facto operate as discharge of the accused unless the High Court otherwise directs. The reference is answered. FAIZ MUHAMMAD, C. J.‑I agree with the conclusions arrived at by my brother Hamid J. ABDUL RASHID, J.‑I agree. A. H. Reference answered.