P L D 1965 (W (PLP)

S. 153 read with Ss. 435' &, 439‑Accused discharged by trial Magistrate without applying mind to prosecution evidence‑Grounds of discharge briefly mentioned without being dealt with "at length"‑Grounds of discharge such, as rendered Magistrate's decision premature in circumstances of case‑Order of discharge, held; was rightly set aside by Sessions Judge. Abdul Majid Asghar for Petitioner: Ch. Muhammad Siddiq for Respondent. Nemat Khan for the State. Date of hearing: 19th January 1965. On a report of Sheikh Sabz Ali respondent No. 1, the police registered, on the 13th of April 1960, at Police Station Khanpur, a case under sections 406 and 420, Pakistan Penal Code, against the petitioner Nur Muhammad and his brother Hotay Khan. The petitioner and his brother were challaned in the Court of the Additional District Magistrate, Rahimyarkhan. The A. D. M. recorded the evidence of ten witnesses and discharged the accused by his order, dated the 20th of December. 1962. The grounds of discharge given by him are reproduced in extenso: "In my view the ingredients of offence under sections 406/420, P. P. C., have not been proved against the accused persons for the following reasons: (1) This case was registered after unreasonable delay of about six months. This has significance. (2) Most of the material prosecution witnesses produced are interested. (3) It has been admitted by the complainant that civil suit about the settlement of accounts is pending between the parties. Under the circumstances, the dispute between the parties is evidently of civil nature. The complainant should get his grievances redressed, if any, through civil Court. The accused persons cannot be charged under sections 406/420, P. P. C. They are, therefore, discharged." 2. The respondent filed a petition for revision against the order of discharge and the learned Sessions Judge, Rahimyarkhan, by his order, dated the 13th of June 1963, partially accepted the petition of revision and set aside the order of discharge in so far as the petitioner was concerned and remanded the case to the Additional District Magistrate, Rahimyarkhan, for further enquiry. The petitioner has put in this petition for setting aside the order of the learned Sessions Judge with a prayer that the order of discharge passed by the Magistrate be maintained. I have heard Sh. Majid Asghar in support of his petition, and I am of the opinion that it is in the interest of justice that there should be a further enquiry. The learned Additional District Magistrate's order is based on grounds which cannot be sustained. His order of discharge is sketchy and cryptic. Under subsection (1) of section 253, Cr. P. C., a Magistrate can discharge an accused when, upon considering the evidence for the prosecution, he comes to the conclusion that no case has been made out against the accused which, if un-rebutted, would warrant his conviction. In support of the prosecution case, eleven witnesses, including the complainant, were examined. The learned Magistrate did not discuss their evidence and ignored it from his consideration on a short ground that the "material witnesses" produced in the case were interested. It is not shown in the order as to how these witnesses were interested. It hardly satisfies the requirements of justice and fair play to condemn a witness like that and ignore his evidence by calling him "interested". The word "interested" is not such which can be understood properly without reference to the facts and circumstances of each case. A person may be interested in the complainant or he may be interested against the accused, but the fact that he has interest in one or is biased against the other by itself does not mean that he is bound to perjure himself in all cases. An interested witness is thus not necessarily a liar; and it cannot be said that he is to be disbelieved in all cases. To discredit him, as not worthy of reliance, it is necessary to state the facts and circumstances as may warrant such a finding. It is true that the evidence of an "interested witness" may be carefully scrutinized, but there can be no basis to disbelieve a witness outright by labelling him as "interested". The other ground for passing the order of discharge was that "the case was registered after unreasonable delay of about six months and this was significant". The delay in initiating the criminal proceedings may, in certain cases, be a circumstance, giving rise to a suspicion as to the genuineness of the proceedings, and if there are other circumstances, it may be a valid ground for giving an accused a benefit of doubt, but the delay by itself' is not sufficient to hold that the proceedings are false. A case through sufficiently delayed, if it can be supported by cogent evidence is not liable to be dismissed on the plea of laches. It is the absence of sufficient evidence for conviction that can justify a discharge under section 253. The learned Magistrate was, in fact, influenced by the fact that a civil suit was pending between the parties. This again could not be valid basis for discharge unless the Magistrate comes to a clear conclusion on the grounds to be recorded that the allegations disclose a dispute of a civil nature which is distorted into a criminal case. The fact that a civil suit is pending between the same parties in respect of the same transaction by itself does not bar criminal proceedings on the same facts. A particular act may give rise to proceedings both under the civil and criminal law. Whereas the civil suit is to determine the rights of the parties and may entitle the plaintiff to a decree; in criminal matters, particularly in cognizable cases, the accused is liable to the State and the society for the offence which he has committed. Thus an accused person cannot be discharged under section 253(1), Criminal Procedure Code; merely because a civil suit in respect of the same matter is pending between the parties. 4. The learned Additional District Magistrate discharge the accused without applying his mind to the evidence before him, He based his decision on certain grounds which he just briefly mentioned without dwelling on them at length. It was, in fact, premature for him to have based his decision on these grounds. In the circumstances of the case, I consider that the learned Sessions Judge's order was a good order and ought to stand. 5. I may, however, state by way of caution that the observations of the learned Sessions Judge in paras. 5, 6 and 7 were only for the purposes of disposing of the revision petition before him and are, by no means, findings in the case as to be binding on the trial Magistrate. I want to make it clear that they are not to affect subsequent proceedings to the prejudice of any party. The trial Magistrate will proceed with the case uninfluenced by any such observation. 6. In the view of the matter I take, the petition has no merit and is accordingly dismissed. A. H. Petition dismissed.