1969 P Cr (PLP)

"I am led to believe that no prima facie case has been made out against the accused persons and as such I discharge all the accused persons under section 20, Cr. P. C." The complainant moved the learned Sessions Judge who in one sentence held as the charge was under section 436 of the Pakistan Penal Code and the offence exclusively triable by the Sessions Judge the learned Magistrate acted illegally when he discharged the accused persons.

5. Much controversy has been raised regarding powers of the learned Magistrate under section 209, Cr. P. C. Section 209, Cr. P. C. reads as follows :‑ "(1) When the evidence referred to in section 209, sub sections (1) and (3), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless." In my opinion the section itself clearly indicates that the learned Magistrate has the power to weigh the evidence first. It must be noted that he is to examine the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Why the learned Magistrate has been given power of examining accused person with regard to the evidence adduced against him if it was not for the purpose of seeing whether the allegations made against him by the prosecu tion were false or explainable by the accused. Ipso facto the learned Magistrate has to weigh the prosecution evidence against explanation of the accused person.

6. Secondly, it will appear from the section that if the learned Magistrate does not find sufficient ground for committing the accused person far trial shall discharge him. The Legislature has used the word `shall' which has been in many cases held to be mandatory. I do not think it should also be held mandatory in this case. He has to find out whether there are sufficient grounds, not merely grounds for committing the accused persons. That is what Legislature again wanted. The learned Magistrate must sift the evidence to come to the conclusion regarding sufficiency of the grounds for commitment. Our Supreme Court in the case of Hariballav Shaha Roy v. Gopiballav Shaha and another (P L D 1959 S C (Pak.) 347), after reviewing the law on the subject has held clearly as follows :‑ "From the above discussion it follows that a Magistrate holding the preliminary enquiry has power to sift and weigh evidence only for the purpose of determining whether or hot it is a fit case for committal and not for deciding about the guilt of the accused that no hard and fast rules can be laid down regarding the distinction to be made between the duty of a Committing Magistrate and that of the Sessions Court, but the test indicated above is a safe guide, viz. that if there is the evidence even a possibility of conviction the accused should be committed for trial though the Magistrate thinks that a conviction is not probable or the matter is not free from doubt, but that he should discharge the accused if on the evidence he comes to the conclusion that no Court or jury could reasonably be expected to convict the accused." This decision has been discussed also in the subsequent case of the Supreme Court in the case of Mazharul Huq v. Ishaque Sardar and others (P L D 1962 S C 480). In that case a fight between two parties in broad day‑light had taken place and a person succumbed to the injuries received in the said fight. The case had chequered history. Defence of the accused in that case was a defence of right of private defence. The Supreme Court was pleased to hold that the Enquiring Magistrate had no jurisdiction to try an offence of murder. In that case the Enquiring Magistrate had discharged the accused on weighing evidence regarding the claim of the defence as to the title to the land in question. It seems that the observation of the Supreme Court in this decision is not conflicting of observation of the Supreme Court in the case of Hariballav Shaha Roy v. Gopiballav Shaha and another. Chief Justice Cornelius observed as follows :‑ "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 an offence of a murder. In other words, if there be questions of fact or of law upon which the prosecutions 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 reasonable doubt." Certainly the earlier decision of the Supreme Court did not give jurisdiction to the Enquiring Magistrate to try the offences exclusively triable by the Court of Session. What was laid down in that case was that the Magistrate holding preliminary enquiry was empowered to weigh the evidence only for the purpose of determining that it is a fit case for commitment and not for deciding the guilt of the accused.

7. In the case before me certainly it was within his jurisdic tion to decide this point, namely, whether there was a case fit for committal to the Court of Sessions. He found that it was false case i.e. the case was not fit for committal. He was not trying the case but only seeking to find out whether the prosecution had been able to establish prima facie case as he himself held in his order as quoted above.

8. In these circumstances, in my opinion, the learned Sessions Judge was not correct in holding that the learned Magistrate had acted illegally in discharging the accused in a Sessions triable case. I, therefore, make the Rule absolute and set aside the order of the learned Sessions Judge and maintain the order of the learned Magistrate. Rule made absolute.