1968 P Cr (PLP)

Ch. A. Jabbar for Respondents. Muhammad Haleem, A. A.-G. for the State. Date of hearing: 28th November 1966. This is an appeal under section 476-B, Cr. P. Code and is directed against the order of the Sessions Judge, Tharparkar (Mr. Azizullah M. Memon) who by the impugned order dated 26-5-64 dismissed the application filed by Ghulam Ahmed Leghari under section 476, Cr. P. Code and thereby refused to prosecute the 10 opponents of offences under sections 193, 194, 195 and 196 and 211, P. P. C. The Assistant Advocate-General (Mr. M. Haleem) has opposed this request.

2. Applicant Ghulam Muhammad Leghari and 5 others were tried of offences punishable under section 120-B read with sections 364, 302 and 201, P. P. C. and they were acquitted by, the learned Sessions Judge (Mr. Mushtaq Ali Kazi) on 26-10-62. The allegations against them were that all these six accused persons on or about 20th August, 1961 had entered into conspiracy along with approver Purkho Kolhi at village Nabisar Road taluka Umerkot to commit the murder of Ismail and in pursuance of that conspiracy accused Kajo Kolhi decoyed Ismail from his house to the but of accused Sumar on the night of 20th August 1961, and thereafter accused Sumar, Abdur Rehman, Nagji and approver Purkho Kolhi committed his murder, and lastly his dead body was thrown on the heap of rubbish outside the village by accused Nagji, Sumar and Abdul Rehman.

3. Prosecution evidence, in this case, consisted of the retracted judicial confession made by accused Kajo Kolhi about 15 days after the incident supported by the evidence of Sain Muhammad Shah and Imamuddin (Opponents Nos. 6 and 7) that Kajo Kolhi had decoyed Ismail from the hotel, and lastly, Purkho Kolhi (the approver) who was given pardon about 5 months after the incident and they are supported by Hussain and Sumar (Opponents Nos. 4 and 5). Anwar Ejaz (Opponent No. 8) had made an application Exh. 25 on 29-8-61 to the S. P. Tharparkar alleging that the District Police was reluctant to make inquiries and the investigation was thereafter transferred to C. I. A. Police. Opponents Nos. 1, 2 and 3 are police officers and they are alleged to have collected all this evidence after the investigation was entrusted to C. I. A. Police. Opponent No. 10 is Khushi Muhammad. He is the informant in this case, while opponent No. 9 (Mohd. Ismail) has been joined because of the enmity with the applicant Ghulam Muhammad Leghari. The learned Sessions Judge, disbelieved all this evidence and observed that interpolations had been made in the first report and inquest report, and lastly, that confession had been extorted from accused Jajo Kolhi. On the basis of these observations the applicant Ghulam Muhammad filed an application under section 476, Cr. P. Code, and it was rejected as stated above. The relevant passage in this order reads as follows: I have heard the advocate for the applicant and also the learned Public Prosecutor. I have also perused record and judgment of the trial Court. Since I had no opportunity to examine the opponents, it would be difficult for me to appreciate the arguments advanced by the learned Advocate of the applicant. The learned Judge did not think it proper to issue any notice suo mote, to the opponents to show cause why they should not be prosecuted. It may be pointed out that the opponents will have to take place of the accused persons and as such evidence will be required for substantiating the charge which the applicant wants the Court to frame charge against them. At any rate the matter is so old that I do not consider it expedient in the interest of justice to grant the prayer of the applicant. The application is accordingly rejected.

4. Mr. Azizullah Shaikh, the learned counsel for the appellant, in his lengthy arguments, had urged before me that it was not necessary that prosecution should be granted by the Judge who had tried the accused persons. He had referred me to the provisions of S. 476, Cr. P. Code in support of this argument. He had further urged that there was sufficient evidence on record for the purpose of prosecuting all these opponents. According to him no time limit is fixed under the law for filing an application Pat under section 476, Cr. P. Code, and lastly, that there was some delay in serving Opponents Nos. 1 to 3 with notices as they are Police officials. In pursuance of the order dated 15-10-65 he has filed supplementary statement showing the illegal acts of the individual opponents. On the other hand the Assistant Advocate-General was of view that there was no probability of conviction of any of these opponents and hence it would not be expedient in the interest of justice to prosecute them. With regard to the interpola tion in these to documents he had argued before me that there was nothing on record to suggest that these documents were forged by opponents Nos. 1, 2 and

3. It is correct that the first report and the inquest report were recorded by Abdul Aziz, Head Constable Police on 21-8-61. It could be argued that both these documents must have been handed over to C.I.A Police after they were put incharge of the investigation. Attempt was made to show that first report was not lodged by Khushi Muhammad but by one Nur Muhammad who is brother of the deceased and thereafter certain interpolations were made in the inquest report. The Assistant Advocate-General had pointed out to me that no question was put to Nur Muhammad whether he had lodged the first report. No body is implicated as an accused person by Kushi Muhammad in his first report. It was after confession was made by Kajo Kolhi that Police made inquiries in that direction. Mr. Abdul Jabbar, Advocate who appeared for all these respondents had supported the view taken by the Assistant Advocate-General. The Assistant Advocate-General, in support of his arguments had relied upon two cases reported in P L D 1965 Kar. 313 where it was held that before prosecution can be granted it must be shown that it was expedient in the interest of justice. He had also referred me to an unreported case of this Bench (Criminal Case No. 1/61). This case refers to another case reported in 14 Sind Law Reporter 69 where it was held that: A sanction of a prosecution should be granted with great circumspection and care. The Courts must consider whether prosecution is desirable in the public interest and whether there are reasonable prospects of securing a conviction. In this particular case the trial Judge (Mr. Mushtaq Ali Kazi) had not granted the sanction suo motu. When the application was filed in the Court it was rejected by his successor. I have referred to the views expressed by the Assistant Advocate-General. Whether it is expedient in the interest of justice that a complaint should be made in the only relevant consideration and it requires balancing of many factors. The sum and substance of section 476 is that before a prosecution can be launched either the first or the-appellate Court must be of opinion that an offence appear to have been committed and that is expedient to prosecute. The opinion has to be their opinion and not the opinion of this Court in revision. It is, therefore, evident that the prosecution should be undertaken only when it is expedient in the interest of justice that a complaint should be made. The Court bas to sec whether it is in the interest of justice to direct prosecution of the person concerned. It is the policy of the law, as it is evident from the provisions of the relevant sections whereby such prosecutions have not been left to private prosecutor but their conduct has been entrusted to the Courts, that in dealing with such matters the Court should see that the prosecution is undertaken in the interests of justice and not to satisfy the private grudge of litigant. Whenever a private party applies to the court to prosecute his opponent, it may be safely presumed that there is malice behind the application. In this particular case I would agree with the Assistant Advocate-General that this application is based merely on the observations made by the trial Court, and as such there would be no probability of conviction of any of these opponents on the basis of evidence already brought on record. In my opinion, therefore, it would not be expedient, in the interest of justice, to allow this appeal, which is accordingly rejected. Notices issued against the opponents are hereby vacated. Appeal dismissed.