P L D 1976 Karachi 653 (PLP)

(1) That the Additional Sessions Judge had himself recorded that at least scuffle bad taken place in the Office of Arbitrator, and the filing of a counter-case, be that prior in time to the complaint which is the subject-matter of this case also indicates that an incident of fighting, did take place. (2) That the witnesses should not be branded as interested witnesses mere ly for the reason that they were employees of the Cooperative Society. (3) That the evidence of Arbitrator Qamruddin has been misread by both the Magistrate as well as the Additional Sessions Judge, Karachi, because Arbitrator had stated that he found the complainant lying on, the ground and the accused sitting over his chest. (4) That there was still another mis-statement of fact because the: certificate of injuries caused to the complainant was available on the record. (5) That section 65-B of Cooperative Societies Act by virtue of which, provision of law the complainant was a public servant would confer a different complexion in regard to the incident itself because a public servant is provided with protection even against an assault. On the other hand, the accused has urged before me :- (1) That the Sub-Divisional Magistrate had the powers of appreciating evidence and no fault can be found with such appreciation, apart from the fact that the law confers on him the power and authority to appreciate evidence. (2) That there were glaring contradictions as between the evidence of witnesses.

3. That the complaint was filed after a delay of 4 months. The learned Additional Advocate-General has taken the stand that the Court of Session as well as the Magistrate have not only misread the evidence but have resorted to such deep scrutiny of the evidence as is not only un warranted by law but was improper while exercising powers udder section 203, Cr. P. C. He has also supported the complaint in all other submissions made by him.

4. At the time of hearing all the parties brought to my notice and also relied on a judgment delivered by me to the case of Muhammad Soofan v,. The State (1975 P Cr. L J 255). This Revision Application was No. 65/72 and was decided by me on 18-9-1973. This judgment was directed against dismissal of a com plaint and a grievance was made before me to the effect "that at the stage of preliminary enquiry it was not open to the Magistrate to embark upon appreciation of evidence or consider the question of interested evidence of the witnesses". In such context I had only stated as follows :- "I am unable to accept such a submission because a preliminary enquiry is ordered only when the Magistrate before whom a complaint is filed is not satisfied with regard to the justification of issue of process. It is under such circumstances that preliminary enquiry is held, in order to ascertain the truth of the allegation. In such enquiry the Magistrate cannot overlook the broad features in the evidence which render the same doubtful or unbelievable. In my mind the acceptance of any different view will defeat the very purpose of section 202, Cr. P. C." Since my own judgment has come up for consideration I would wish to elaborate the principles governing various stages in a criminal trial when accused is absolved of the charge. Such stages arise in following cases :- (I) When a complaint is dismissed under section 203, Cr. P. C. (2) When an accused is discharged after committal proceedings under section 209, Cr. P. C. (3) When an accused is discharged in a warrant trial under section 253, Cr. P. C. ; and (4) When an accused is acquitted under section 258 or 367, Cr. P. C. The language employed in each one of these sections is different. A .complaint is dismissed under section 203, Cr. P. C. if in the judgment of the Magistrate no sufficient ground exists for proceeding with the case. In com mittal cases an accused person is discharged under section 209, Cr. P. C. when the Magistrate is of the view that there are no sufficient grounds for com mitting the accused for trial. Under section 253, Cr. P. C. an accused is discharged in a warrant case if the Magistrate finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction. The accused of course could be acquitted on several grounds which may be lack of evidence or evidence being doubtful or guilt of the accused not being satisfactorily established. It is well known that an acquittal of course has to be interfered with only in very exceptional circumstances when a Court comes to the conclusion that the judgment is so perverse or foolish that no reasonable Court could have arrived at such con clusion. On the other hand, an accused can be discharged if the evidence available on the record is either not sufficient or so unreliable that even if the prosecution evidence were not rebutted by the evidence of the defence, the case would still result in acquittal. In relation to the com plaints, dismissal is merited only in such rare cases where the Magistrate comes to the conclusion "in his judgment that no sufficient grounds exist for proceedings, action at each one of the stages does involve a mental exercise and a degree of appreciation but burden on complainant then is far lighter." While using the words which I have quoted above in the case of Muhammad Soofan, I had only meant to state that it would be rendering section 202, Cr. P. C. almost nugatory and of no legal effect if the Magistrate had no option to satisfy himself with regard to the justification of issue of process. In such exercise it would be open to the Magistrate to look at the broad features of the evidence and even the same may make the case doubtful or un believeable. I still adhere to that principle but would clarify that the powers of the Magistrate under section 203, Cr. P. C. are not designed to clothe him with powers of such deep appreciation of evidence as is required at the time of the final judgment. But surely, it cannot be said that the Magistrate should form a judgment in regard to grounds for proceedings with the complaint B without applying his mind at least to the broad features and aspects of a particular case. To take any other view would render the provisions of section 202, Cr. P. C. virtually meaningless for in that case in any type of complaint which is filed before a Magistrate process has to follow automatically.

5. The accused has additionally invited my attention to one case of the erstwhile Chief Court of Sind which is Azizuddin v. Emperor (A I R 1939 Sind 81) and another case from Lahore High Court via. Divan Singh and others v. Emperor (A I R 1933 Lah. 561). While the Sind case is decided by a Division Bench the Lahore case is decided by a learned Single Judge of that Court. The case from Lahore relates to further enquiry after an order of discharge of the accused and is as such not of much assistance in this case. In the Sind case. Devis J. C. and Weston, J. were dealing with a case of Revision directed against the dismissal of a complaint. The learned Judges had reviewed the case-law on the subject in relation to the power of the High Court to interfere against orders of dismissal or com plaints. Notably, the learned Judges distinguished an earlier case reported in A I R 1916 Sind 16 and relied on the Bombay case of Ramchandra Babaji v. Emperor (A I R 1935 Bom. 137). Their Lordships of the Sind Chief Court observed that Court of Revision would not interfere with an order unless the same could be fairly described as "perverse or manifestly contrary to the evidence." Their Lordships went on to state that if a reasonable order has been passed by a Magistrate in the exercise of his jurisdiction the High Court would not. interfere unless "that order was perverse or manifestly contrary to the evidence", so as to be called an improper order. The accused also urged before me that concurrent findings of facts by the two Courts below should not be interfered with by the High Court. To say the least, the submission was couched in very broad terms and does not reflect the correct state of law because powers of this Court under section 436, Cr. P. C. remain on the statute. This Court can interfere with orders where complaints have been improperly dismissed.

6. Applying the above principle I would initially state that the order of the Magistrate and the Additional Sessions Judge proceed on wrong assump tion of facts, almost amounting to misreading of the evidence. The Sub- Divisional Magistrate, has stated in his order that the witnesses produced by the complainant were interested for the simple reason that they were sub . ordinates of the complainant. The Additional Sessions Judge in such context has also branded the witnesses as interested witnesses for the simple reason that they were subordinates of the complainant. These witnesses were not subordinates of the complainant because they were also in the employment of the Society as the complainant himself was. The presence of these witnesses in the office of the Arbitrator on the date of hearing of the Arbitration case was not far from normal or natural. I however, do not understand how. Qamruddin Nota, an Advocate, who was the Arbitrator could be called a subordinate of the complainant and therefore interested. Such statement appears in para. 3 of the order of the Additional Sessions Judge. Mr. Qamruddin Nota was an independent Advocate and was performing quasi judicial function as an Arbitrator. It would be perverse to brand him as the subordinate of the complainant. In regard to Qamruddin Nota the Magistrate however has stated that he was the only independent witness but according to the Magistrate his evidence was "rather ambiguous". I have gone through his evidence and I find no ambiguity and this witness has stated that he was busy writing when, all of a sudden he raised his head and found that the complainant was on the ground and the accused was sitting over him. I have also carefully read the evidence of the complainant and witness W. M. Siddiqui and I find that they have incriminated the accused. It cannot in these circumstances, be stated that the case was one of no evidence or that the evidence was so unreliable, and that too in absence of cross-examination, that render the case as one of such a nature that did not call for taking any further proceedings. On a reading of the order of the Magistrate I find that he has stated as follows :- "Moreover, all eye-witnesses also state that Mr. Irshad (accused) got up from the chest of the complainant without any outside interference which shows that the fight, if any, might not have been anything greater than a scuffle." That being the finding of the Magistrate it would appear that even in the opinion of the Magistrate a scuffle did occur and when it is considered in conjunction with the circumstances that a counter-case has also been filed by the accused and the complainant has also produced a medical certificate the case at least merited to be proceeded with. What is more interesting is that the Magistrate has stated in his order that the complainant had produced no record from P. N. S. Shifa to corro borate his case. As already stated a medical certificate from the Naval Hospital was available on the record and in such circumstances it appears to be a clear mis-statement of fact. The last point that has weighed with the Courts below is the delay in filing the complaint. It is only under very exceptional circumstances, that delay by itself may be considered fatal in a criminal case, but in order to come to that conclusion all the circumstances of the case have to be examined. In the present case the occurrence of the incident is indeed not denied even by the accused. The incident occurred in the evening hours and the com plainant went to the Naval Hospital at 6 p.m. for treatment and he was found to be having multiple injuries. No doubt, the report was lodged at about 10 p.m. There is a possibility that the complainant, who is stated to be disabled, may have taken sometime to obtain treatment and thereafter might have complained to his superior officers in the first instance before he went to lodge the report. The report before the police was in such circumstances, not so delayed as to be considered fatal to the prosecution case. The learned Magistrate however, added an interesting sentence in his order by stating that if the police had not taken action the complainant should have sought remedy through a Court without delay. To such extent Mr. I. A. Hashmi has stated that police had not sent any letter or communication to the complainant to the effect that they could take no action in the matter ; and he strengthened his arguments by a further statement that since the complainant was a public servant offence under section 332 was a cognizable crime and the police should have taken action and if they were not inclined to take action they should have informed the complainant in regard to such refrain. Be that as it may, I find that in the case information in regard to the occurrence was fairly prompt and I cannot hold that there was a delay in this case or such delay would be fatal to the prosecution case.

6. In the result, I accept this Revision Application and set aside the order of discharge passed by the Sub-Divisional Magistrate and the further order of the Additional Sessions Judge affirming the order of discharge. The case is now sent back to the City and Additional District Magistrate, Karachi, who shall bold a further enquiry into this matter either himself or make over this case to a Court of competent jurisdiction. I would only add that it would be desirable if this as well as the counter-case filed by the accused against the complainant are dealt with by one and the same Magistrate. S. Q. Petition accepted,