P L D 1954 Peshawar 17 (PLP)

MUHAMMAD SHAFI, J.‑Zamir, aged about 70 years, son of Faqir, Dawa Khan, aged about 33 years, son of Hilal Gul. Subhanud Din, aged about 25 years, son of Zamir, Said Habib, aged about 24 years, son of Muhammad Nabi, and Rahmat Gul, aged about 45 years, and Lal Khant aged about 30 years, sons of Wazir, were the accused in a case started against them by the Police for being armed with deadly weapons and in prosecution of their common object committing the murder of Watha Mir and his son Hazrat Mir, on the 15th of August 1952, in the fields of Maira Mian Isa. Nobody had seen the occurrence, and the prosecution case rested completely on the oral dying declaration alleged to have been made by Hazrat Mir deceased. This Hazrat Mir according to the statement of the doctor had three small sized entrance wounds in front of the right side of chest outside the axilla, 55 small pellet entrance wounds scattered in position occupying the entire front of the right arm, 7 exit wounds on the back of the small pellet wounds on the back of the right forearm, and four exit wounds in front of the right forearm. On internal examination his right lung and brachial vessels of the right arm were found injured. Death was due to shock and bleeding as a result of injuries to the right lung and brachial blood vessels of right arm. The doctor was of the opinion that Hazrat Mir after receiving these injuries could have lived and talked for about half an hour or so. In support of the alleged dying declaration of Hazrat Mir, the prosecution produced Yusaf (P. W. 2). Shakar Din (P. W. s). Taza Din (P. W. 4), and Jumma Khan (P. W. 12). Yusaf is the son of Watha Mir deceased and the brother of Hazrat Mir deceased. He admits his enmity with the accused although Zamir accused happens to be his uncle. Incidentally the other accused are very close relations of Zamir. Shakar Din admits his enmity with the accused, because he along with his sister's on Janab Gul, his brother Bahar Gul and his brother‑in‑law Karim Khan, was charged for the murder of Samad Gul, the brother of Rehmat Gul and Lal Khan accused. Taza Din's sister is married to Watha Mir deceased. Jumma Khan is the person against whom Kappor Khan had lodged a report that he had taken forcible possession of the land leased out to Rahmat Gul and Lal Khan accused. It would, thus, be clear that all the witnesses, who were produced by the prosecution in support of the oral dying declaration of Hazrat Mir deceased, were interested and could not be relied upon without some corroboration, which was lacking in the case. Apart from that, all the witnesses were alleged to have arrived at the spot from some distance, which must have taken them more than half an hour, and according to the statement of the doctor Hazrat Mir deceased could not have lived beyond that time. Disbelieving this evidence the learned Inquiry Magistrate discharged the accused by his order, dated 11th of November 1952. There was a revision petition against this order, which was accepted by the Additional Sessions Judge, Peshawar, by his order, dated 18th of June 1953, and the Inquiry Court was directed to commit the accused for trial "under the charges mentioned above." By these words the reference was perhaps to the first paragraph of his order, wherein the learned Additional Sessions judge had written, although wrongly, that the accused were charged under sections 302/148 and 149 P. P. C. The learned Additional Sessions judge failed to notice that there were no charges framed against the accused much less under sections 302/148, P. P. C. which are two distinct offences. The accused have now come up in revision to this Court. The learned Additional Sessions judge, while accepting the revision petition has made the following observations to his order: "The order of the Enquiry Magistrate is, in fact a judgment in the case. The learned Magistrate has considered the evidence of the prosecution, more or less, as a Trial Court and thereby has seized the jurisdiction of the competent Court which could bear it. In such like cases what the Magistrate has to see is, whether there are sufficient grounds for con viction. He has to weigh the evidence only from this point of view. The concluding para. of the order of the learned Magistrate is as follows: 'Taking into consideration all these facts, there seems no ground good enough to hold the accused guilty and send them to the Court of Session.' Obviously by the said observation the Enquiry Court has exercised the jurisdiction of a Trial Court. The only business of the Enquiry Magistrate was to point out if there was any evidence which, if believed, would warrant conviction, but believing or disbelieving the evidence of the prosecution exclusively rests with‑the Trial Court. The learned Additional Sessions judge, then, without going into the evidence produced by the prosecution and without holding whether on the evidence produced there were sufficient grounds to commit the accused to the Court of Session, found the order of discharge improper, set it aside, and ordered the Enquiry Court to commit the accused according to law. The paragraph from the order of the learned Additional Sessions judge reproduced above I am constrained to remark, hardly carries any sense. He is wrong when he says that in such like cases what the Magistrate has to see is whether there are sufficient grounds for conviction and that the Magistrate has to weigh the evidence only from that point of view. The well established principle of law so far as the inquiry proceedings are concerned, is that after the prosecution evidence is recorded and the accused, if necessary, is examined, the Magistrate must see whether there are sufficient grounds for the commitment of the accused to the Court of Session as dis tinguished from his conviction. It is on account of this fact that it is commonly said that if the Magistrate finds that a prima facie case for commitment has been made out, the Magistrate must commit the accused to the competent Court without entering into the nice questions of the probabilities of the case or giving the benefit of any exception to the accused, if it is claimed by him. In order to satisfy himself whether there are sufficient grounds for committing the accused person to the Court of Session, the Magistrate has to go into the evidence and weigh it from that point of view. It will be absurd and inconsistent to say that a Magistrate can go into the evidence and weigh it, but he cannot discredit or disbelieve it, and should under any circumstance commit the accused to the Court of Session. In my view, if on weighing and on honest appreciation of the evidence, the learned Magistrate arrives at the conclusion that the evidence is completely untrustworthy, I fail to see why should he waste the time of the superior Court, and the money of the Government as well as of the accused and commit him to the Court of Session. Under these circum stances it would be his duty to discharge the accused and it doing so he would not be considered to have usurped the jurisdiction not vested in him by law. It must however, be emphasizes that the Inquiry Magistrate has only got to find whether there are possibilities of conviction and not probabilities thereof. In the case before me, on an honest appreciation of the evidence, I do not think it could be said that there existed sufficient grounds for committing the accused to the Court of I consequently accept the petition, set aside the Additional Sessions judge's order, and restore that of the Inquiry Magistrate, whereby the accused have been discharged. If the accused are in the lock‑up, they shall be released forthwith, provide of course if they are not wanted in any other case. Orders announced. A. H. Petition accepted.