1970 P Cr (PLP)

(c) The case was transferred to the Court of the Additional District Magistrate, Gujrat, for disposal. The learned Magistrate recorded the statement of the complainant on the 20th July 1963 and 27th July 1963. The learned Magistrate, after considering the statements made by the complainant, did not consider it necessary to summon the other witnesses and, holding the charge to be groundless, discharged the petitioner in pursuance of section 253, Cr. P. C. (d) The petitioner also filed a cross‑case against the complainant in respect to the incident dated the 22nd June 1962. (e) The complainant preferred a revision petition to the Sessions Judge, Gujranwala, who by order dated the 8th February 1964, (impugned order) set aside the order of discharge and remanded the case for further inquiry and trial. The learned Sessions Judges observed :‑‑ "He did not examine any other eye‑witness although the number of the eye‑witnesses is stated to be eight in all. Admittedly the learned Add. District Magistrate did not decide the two cross‑cases together and he thus committed a serious error of procedure. I hold that the order of the learned Addl. District Magistrate in deciding cross‑cases separately and not examining the material witnesses is perverse." Mr. Zia Ullah, learned counsel for the petitioner tried to justify the ,order passed by the learned Additional District Magistrate. He submitted that the trial Court, after a careful consideration of the statements made by the complainant, concluded that the alleged occurrence did not occur and the accusation was groundless; accordingly, he did not consider it necessary ‑ to examine the so‑called eye‑witnesses whose names had not been mentioned in the original complaint made by the complainant to the Additional District Magistrate, Gujranwala on the 23rd June 1962.

4. Mr. Gulzar Hassan, learned counsel for the State, resisted the revision petition, urging that the order passed by the learned Sessions Judge was proper.

5. We have to see whether the impugned order dated the 8th February 1964, is correct, legal or proper.

6. It may be conceded, for the purposes of the present case, that before the 23rd June 1962, there existed bitter enmity between the complainant and the petitioner. This enmity is a double‑edged weapon, it may be a motive for the occurrence which, according to the complainant took place on the 23rd June 1962; in his office, while he was busy performing his duties as a public servant; this enmity may as well be a reason for implicating the petitioner in a false case. The trial Court was under an obligation to ascertain whether the said occurence occurred as a fact and if so whether the petitioner had committed any offence. The precise allegations in the complaint dated the 23rd June 1962,. were as follows :‑ "But he (petitioner) started abusing me and assaulted on me grappling me by the neck. If those present had riot interfered, I might have been seriously injured." The trial Court was under an obligation to determine whether there was an assault within the meaning of section 352, P. P. C. For this purpose he was required to examine the complainant and "those present". The learned Magistrate examined the complainant but declined to examine the persons who were present in the said room and allegedly had interfered and save the complainant from serious injuries. The police recorded the statements of all the witnesses who claimed to be eye‑witnesses. The learned Magistrate was not justified, before examining those witnesses, to conclude that their statements would be inconsequen tial and inconclusive. This amounts to condemning a witness before hearing him. I am satisfied that the action taken by the trial Magistrate was unwarranted and operated to the prejudice of the complainant. In short the complainant was not permitted adjudge evidence in support of his case. The learned Session Judge was fully justified in setting aside the order and directing) further inquiry.

7. Learned counsel for the petitioner referred to the case Sheikh Muhammad Amin v. Superintendent Police, Jhang (P L D 1960 Lah.684) and urged that the impugned order deserved to be revised because‑ (a) the learned Sessions Judge did not record a finding that the conclusion reached by the Magistrate was perverse and foolish; (b) the offence was not a grave offence; (c) the offence is alleged to have taken place in June 1962, and it would be improper indeed to have it tried 7 years after the occurrence. 8 Assuming that 8 independent witnesses were available to affirm and corroborate the allegations made by the complainant, it will indeed be a perverse order if those independent witnesses are not examined and the statement made by the complainant, for reasons of enmity, is held to be not believable. . Section 252, Cr. P. C. runs as follows :‑ "(1) When the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and, take all such evidence as may be produced in support of the prosecution. Provided that the Magistrate shall not be bound to hear any personas complainant in any case in which the complaint has been made by a Court. (2) The Magistrate shall ascertain, from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary." Evidently, the learned trial Magistrate was under an obligation to "take all such evidence as may be produced in support e of the prosecution". By shutting out the evidence of the eye‑witnesses, he committed a serious error in procedure which, is likely to have resulted in miscarriage of justice.

9. It is premature to say whether any offence was committed or whether it was riot of a grave nature. Assuming that an offence, namely, interference by the petitioner with the complainant while he was performing his duties as a public servant in his office was committed as a fact, it should be treated as an offence of grave nature:

10. It is true that under the impugned order the offence which is alleged to have taken place in June 1962, shall be tried in 1969. For this situation, the complainant is not to blame. The petitioner filed the present revision petition and got the proceedings stayed by order dated the 17th March 1964. The law shall have its course delay notwithstanding.

11. There is no force in the revision petition. It is dismissed.