P L D 1967 Karachi 649 (PLP)

There is an order immediately following which also reads as follows :‑ "From the evidence recorded, I find that the offence falls under section 342, P. P. C. Issue summons against Lal Muhammad, S. I. P. There is no evidence against other accused, "hence I discharge this complaint in that case. Put off to 14‑5‑

63. Complainant directed to attend." This order is not dated but from the diary of the case appears to have been passed on the 19th Aril 1963.

3. After cognizance had been taken only against respondent No. 1 under section 342, P. P. C, the evidence produced by the complainant was examined, and an order under section 253, Cr. P. C. was passed by the learned Additional District Magis trate dated 27th August 1963, discharging the respondent No.1 who was the only accused before that Court. A revision application was filed under sections 435 and 435, Cr. P. C. before the learned Sessions Judge, Nawabshah on 13‑12‑1963. After hearing the counsel for Sufi, the learned Additional Sessions Judge pissed the following order:‑ "The learned Additional District Magistrate has discharged the accused as he disbelieved the prosecution case. All the material witnesses have been examined. I would, therefore, summarily dismiss this revision application."

4. The first point raised by Mr. Arif for the applicant is that the order of discharge dated the 27th August 1963 by the learned A. D. M. is erroneous and illegal in that one of the offences alleged in the complaint filed by Sufi Muhammad Sadiq was .one under section 220, P. P. C. and as this offence is exclusively triable by the Court of Sessions, the learned A. D. M. was debarred from discharging the accused and should have committed the accused before him to the Court of Sessions for trial. Reliance is placed on Hari Dallav Shaha Boy v. Gopi Bullav Shah and another (PLD1959SC347), where the charge against the accused was one under section 437 and cognizance had been taken under section 476, Cr. P. C. and the Magistrate holding the preliminary inquiry had discharged the accused. Their Lordships in the context of these facts went on to observe :‑ "The circumstances under which a Magistrate may appreciate evidence for finding out whether there are sufficient grounds for making accused stand a trial and not to decide about his guilt." This ruling is not applicable to the facts of the present case for although section 220, P. P. C was one of the sections stated in the complaint, the learned A.D.M. by his order dated 19th April 1963, after recording the evidence of witnesses in the preliminary inquiry was of the view that only an offence under section 342, P. P. C. had been made out and only against one of the three accused namely the respondent No. 1.

5. It is admitted at the Bar that no revision was filed against this order of the learned A. D. M. and there is no basis for the contention by the learned counsel that section 342, P. P. C. being a general section the Darned A. D. M. was not justified in issuing process under this section on the evidence against him. 1t has been rightly contended at the Bar that if the present applicant was aggrieved with the Order of the learned A. D. M.: dated the 19th April, he should have appealed against it, and not having done so, must now be considered to have waived his right to it.

6. Learned counsel then relied on Mansharam Gianchand v. Emperor (1941 Sind 36), a judgment of Godfrey Davis, C. J. This was a cast in which Mansharam Gianchand a one‑time S. I. P. and his alleged confederate Shanker, a clerk in the K. M. C. were convicted by the C. M., Karachi for offences of wrongful confine ment and extortion. Reliance was placed on the observations made to the effect that where a Legislature has provided that an offence because of its gravity or special knowledge required that its trial should be tried by a Sessions Court, a First Class Magistrate, however, proper his motives, should not himself remove that case from the Court of Sessions and try it himself by merely altering the numbers of the sections, "for after all the numbers of the section are mere labels and what is to be locked at is the allegation of facts." A Magistrate cannot, therefore, usurp a jurisdiction to himself he did not possess by placing an offence which rightly falls under section 220, Penal Code, under section 342, or section 347, Penal Code, so as to give himself jurisdiction to try it. It would appear that in the case cited above, although section 220 was one of those sections cited in the complaint against the appellant, cognizance was in fact taken of the offence under that section and also under sections 342 and 347; P. P. C. That cafe is therefore clearly distinguishable from the Instant case. Here although section 220, P. P. C. was one of the sections cited in the complaint, cognizance was only taken under section 342, P. P. C. and in view of what has been earlier held is that the applicant has made no grievance against that order, this ruling also in my opinion will not apply.

7. We now pass on to the facts of the case as the learned counsel for the applicant has alleged a mis‑reading of the evidence recorded before the learned A. D. M. The discharge order is at page 8 of the paper-book. I have been taken through the evidence recorded by the learned counsel do either side. I must say at the very outset that I am in full agreement with the assessment of the evidence recorded before the learned A. D. M. for whatever evidence was recorded consisted of interested witnesses whose testimony was on the face of it unreliable. In addition it is full of contradictions on the material facts of the case against the respondent No.

1. On almost every important aspect of the case of the complainant, there is divergent evidence.

8. The case of the respondent No. 1 was that the complaint had been filed against the present applicant at about 11‑30 p.m. before the S. H. O. Khadim Hussain. He was then on patrol duty and was sent a copy of the F. I. R. after which he went to the shop of Sufi and arrested him at about 2 O'clock. This was in answer to the applicant's case that he had been arrested at about 10‑30 p.m. The respondent contended that he then took the applicant to the police station as at that hour he did not offer any surety. Surety was only offered the next morning at 8 a.m. when it was accepted and the applicant released on bail. The further circumstance is that is the original complaint lodged before the District Magistrate no averment was made as to what witnesses were present at the time the incident took place, and there was an obvious attempt at improving upon the prosecution case from that stated in the original complaint. I am, therefore, firmly of the view that the learned A. D. M. was justified in concluding that the presence of the prosecution witnesses who were interested was highly doubtful and that, therefore, the respondent No. 1 was entitled to a discharge. On these circum stances, the learned Sessions Judge was also impelled and in my view quite rightly, to summarily dismiss the revision application filed against the order of the learned A. D. M.

9. No irregularity has been pointed out and from the additional circumstance that at this stage after nearly three years no useful purpose will be served by ordering a retrial, I dismiss this revision application. K B. A. Petition dismissed.