P L D 1975 Lahore 736 (PLP)

Muhammad Afzal Siddiqi for Petitioner. Dr.Farooq A. Hassan Asstt. A.-G. and Shabir Ahmad for the State. This is a petition under section 215 of Cr. P. C. for quashment of a commitment order passed by Ch. Shaukat Ali on 3-2-1975 for the trial of the two petitioners under section 302/34, P. P. C. by the Sessions Court for having caused the death of one Maqsood. The deceased actually belonged to Sialkot and had taken his residence in Lahore. Nazir alias Guddi Sain was living with his sister and it is said that the aforesaid Nazir alongwith his sister's son Muhammad Hussain and another man who remained unidenti fied, committed the murder of Maqsood by causing knife injuries.

2. The F. I. R. was lodged by Rehmat Ali who has appeared before the Magistrate as P. W.

10. In the F. I. R. he named the two petitioners and another person as the assailants of the deceased. Apart from Rehmat Ali, the prosecution named Allauddin and Mehr Din as eye-witnesses. During the investigation, a knife was recovered from Nazir alias Guddi Sain and was sent for chemical examination. The report of the serologist was that the knife was found to have been stained with human blood.

3. The occurrence took place on 14th of March 1972, and the Challan was presented to the Court on 10-5-1972. From 10-7-1972 to 6-3-1973, the evidence of six witnesses was recorded. Thereafter for about sixteen months, no witness appeared before the Court.

4. The case has been changing hands. Ch. Shaukat Ali, who passed the commitment order was the 6th Magistrate to handle this case. The evidence of the first informant was recorded on 19-8-1974 who completely went back on his statement made in the F. I. R. and stated that he was called by the Police and asked to name the accused on the threat of being involved in murder case. He was declared hostile, but persisted in his denial of the statement made in the F. I. R. The other eye-witnesses were given up as having been won over. I find from the order sheet that Allauddin was given up on 18-4-1973, long before the bail order was passed in respect of Nazir alias Guddi.

5. Muhammad Shafi has appeared as the witness of the recovery. He said that a knife was recovered from Nazir alias Guddi. During the cross-examination, be stated that the knife was recovered at midnight but denied that it was recovered in his presence. He further stated that he had seen the knife with the Police and was not able to identify the accused because lot of persons were present there.

6. It is submitted that the commitment order cannot be sustained on the evidence brought on the record. The learned counsel submits that it is actually a case of no evidence and to permit further proceedings in the form of trial by the Sessions Court will be giving sanction to a sort of farcical trial. He has relied upon Khushi Muhammad and another v. The Slate (1973 P Cr. L J 609), where it was held that in a case of no evidence, the commitment proceedings should be quashed.

7. The learned Assistant Advocate-General appearing for the State has submitted that the opinion of the Lahore High Court was not uniform as to whether the absence of evidence was a legal ground for quashing a commitment order under section 215 of Cr. P. C. He in this connection made a reference to Hassan Din v. Emperor (A I R 1931 Lah. 467) where it was held that the absence or insufficiency of evidence do not constitute a point of law and therefore a commitment order could not be quashed because of absence of evidence. The case of Gansham Das v. Emperor (A I R 1930 Lab. 545) wherein it was held that absence of evidence was a legal ground for interference of the High Court under section 215, Cr. P. C. was dissented from. My attention has also been drawn to Bahadar Khan v. The State P L D 1963 Pesh. 34 where reference appears to have been made to the case of Hasan Din. The Division Bench, however, did not decide whether the absence of evidence was or was not a question of law. It was actually a case where the matter for con sideration was whether or not the evidence was sufficient to connect the accused wits the crime. There was evidence of motive and abetment and the Division Bench therefore refused to quash the commitment order.

8. It is to be noted that Chapter XVIII of the Cr. P. C. which deals with enquiries has a scheme of its own. Under section 210 of Cr. P. C., commitment is to be made if the Magistrate is satisfied that there are sufficient grounds for that. The trial is to be held on the basis of evidence in the possession of the prosecution and the satisfaction of the Magistrate has to be in relation to the evidence on the record. If it is clear that there is no evidence and commitment will be abortive, the Magistrate under subsection (2) of section 213 has the power to discharge the accused. These] provisions clearly indicate that no commitment can be made without some factual foundation for the satisfaction of the Magistrate. In the absence of any incriminatory evidence, no satisfaction as is contemplated under section 210 can be reached. The question of insufficiency of evidence is quite distinct from that of absence of evidence. Normally the question of sufficiency or otherwise of the evidence is to be left to the Sessions Judge. The Privy Council in Harendra Lal Roy Chowdhurl v. Smt. Haridasi Debi and others (A R 1914PC67) which was a civil matter, observed at page 71 of the report that absence of evidence was a question of law.

9. In my humble view, the absence of evidence is a question of law under section 215 and to hold otherwise would be to compel the Court of l Sessions to go through a hollow performance of holding a trial.

10. The judgment in the case of Khushi Muhammad relied upon by the learned counsel for the petitioner, I say with greatest respect, is based on sound principles of law and I respectfully follow the same. I direct that the impugned commitment order shall stand quashed and the accused shall stand discharged.

11. I may observe here that the language used by the learned Magistrate on some occasions with respect to the character of the accused and witnesses is not quite in accord with judicial equanimity. He has borrowed some information from the reports of the process servers who failed to effect service and has used these phrases as evidence of bad character of Nazir alias Guddi Sain petitioner and Rehmat Ali and Khushi Muhammad P. Ws. Nazir has been described as a notorious, desperado and a pick-pocket. He has described Rehmat as a habitual pick-pocket and Khusbi Muhammad as a vagabond and one disinherited by his parents. The learned Magistrate has dubbed him as a pick-pocket "on his own surmise". I may say that this description of the character of the accused and the two witnesses is devoid of legal evidence and relevancy.

12. The learned Magistrate has not been very complimentary to his own colleagues, when he says in his order that five of them had "washed their hands" off this case. His lament on the persistent failure of the police to effect service may have some justification, but he transgressed limits of judicial deportment when he said in para. 10 of the impugned order that the bail was granted by the High Court at an inopportune time which enabled Nazir alias Guddi Sain, to "damage the prosecution case". This uncalled for observation verges on contempt. The Registrar, High Court, shall call for the explanation of this Magistrate for writing his judgment in the tenor mentioned above and for criticising the bail order of the High Court. K. B A. Commitment quashed