P L D 1963 (W (PLP)

3. On the 9th November 1959 one Muhammad Sachal produced accused Ghulam Qadir before the police Ghulam Qadir gave his statement before the Magistrate on 9th November 1959. He admitted in his judicial confession that he had throttled Mst. Rahman.

4. Mst. Fazlan before the Court stated that she had given her statement as a result of coercion and threat by the appellants. She stated that she was unlawfully confined by the three accused in the police quarters from 6th November for four days and nights. She was maltreated and tortured. Mst. Nabul, wife of Ghulam Qadir also stated that she was unlawfully confined by the police so that Ghulam Qadir may make the judicial confession. Muhammad Sachal who had produced the accused before the police stated that he produced the accused as his brother Darya Khan was unlawfully confined and tortured for three days by the police. Kamil who had deposed as to the motive of the murder stated that he had made the statement under police pressure. The learned Sessions Judge on the statement of these witnesses came to the conclusion that a prima facie case has been made out under sections 194, 343, 323, 164/34 of the Penal Code.

5. Mr. Tufailali A. Rehman, the learned Advocate for the appellants, raised two fold contentions before me. He con tended in the first place that in the circumstances of the present case no prima facie case was made out. In the second place he contended that it cannot be said that the filing of the complaint would be expedient in the interest of justice within the meaning of section 476 of the Criminal Procedure Code. I propose to consider these contentions in order.

6. Before I consider the contentions of the learned Advocate for the appellants, it would be useful to examine whether the learned Sessions Judge could file a complaint under sections 343, 323, 166/34 of the Penal Code. In order to consider this point it would be necessary to reproduce subsection (1) of section

476. It runs as under :‑ "476 (1) When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195, subsection (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceed ing in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non‑bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate. (Provided that, where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint.) For the purposes of this subsection a Presidency Magistrate shall be deemed to be a Magistrate of the First Class." It would appear from the above that the power of the Court is confined to an enquiry for an offence referred to in section 195, subsection (1), clause (b) or clause (c). It is only in respect of offences which fall under section 195, subsection (1), clause (b) or clause (c) that the Civil or Revenue Court can, if it considers expedient in the interest of justice, after preliminary enquiry, file a complaint. It is conceded by the learned Assistant Advocate General that the offences under sections 343, 323 and 166 would not fall under section 195, subsection (1), clause (b) or clause (c) of the Penal Code. The question is whether the learned Sessions Judge could, if he was of the opinion that offences under sections 343, 323 and 166 have been committed by the appellants, file a complaint. It was contended by the learned Assistant Advocate‑General that the learned Sessions Judge had jurisdiction to file a complaint under section 195 of the Penal Code. He could make an observation in respect of offences which the appellants had committed in the course of the investigation. Making an observation is quite distinguishable from filing a complaint. The mere observation of the Sessions Judge would not give jurisdiction to the Magistrate to frame charges under sections 343, 323 and 166 on the complaint of the Sessions Judge., In my opinion section 476 of the Criminal Procedure Code is a penal provision of law. It is to be strictly construed. The Sessions Judge cannot assume power where none has been con ferred on him. His power of enquiry and complaint are confined to the offences mentioned in section 195, sub‑section (1) of clause (b) or clause (c) of the Criminal Procedure Code. The complaint of the learned Sessions Judge, therefore, in respect of offences regarding, sections 343, 323 and 166 read with section 34 was bad to law.

7. The first question for consideration is whether any prima facie case against the appellants is made out for an offence under section 194 of the Penal Code. In other words, are there circum stances to show that the appellants fabricated false evidence intending thereby to cause or knowing it to be likely that they will thereby cause any person to be convicted of an offence which is capital by the law for the time being in force. In order to consider this question it may at the very outset be stated that there is no other evidence except the statement of some of the prosecution witnesses to support the ingredients of section 194, P. P. C. The witnesses in short have stated that they gave state ments against Ghulam Qadir as a result of pressure brought about by the appellants, thereby implying that what they had stated either before the police or in their statements under section 164 of the Criminal Procedure Code was false. There is no independent material to corroborate their statement. The witnesses never made any complaint to any authority who could investigate into the matter. Most of these witnesses are very closely related to accused Ghulam Qadir. The possibility of their screening the offender cannot be ruled out. On the other hand, it would appear from the evidence of the doctor that Mst. Rahman had not committed suicide. Dr. Anwarul Haq stated as under :‑ "Strangulation in this case can be caused by soft structure like a dupatta. It is not a case of throttling. In the present case the points which discriminate from drowning are marks of injury on neck and absence of water in the stomach and absence of swelling of lungs." The above statement of the doctor would indicate that someone had strangulated the deceased and then threw her body in the well. The conclusion of the learned Sessions Judge that the deceased committed suicide on the brink of the well and then threw herself in the well is based on mere surmise. There is no basis for this surmise. The deceased, it would appear from the above opinion of the doctor, must have been already dead when someone threw her in the well. If the deceased had not died as a result of suicide as found by the learned Sessions Judge the possibility of someone having strangulated her cannot be ruled out. It may well be that Ghulam Qadir had strangulated the deceased. If once it is held as a reasonable possibility that Mst. Rahiman did not die, as found by the learned Sessions Judge as a result of suicide, the evidence of the prosecution witnesses which they later on resiled gains much strength. It would appear that what they had earlier stated implicating Ghulam Qadir was perhaps the truth. The prosecution witnesses being very closely related to Ghulam Qadir later on resiled from what they had stated earlier. It is common knowledge that whenever the pro secution witnesses resile from what they had stated earlier they state that they had made their earlier statement as a result of police pressure and coercion. In the absence of anything on the record except the statements of the prosecution witnesses that E they implicated Ghulam Qadir as a result of coercion by the police no prima facie case is made out. In this connection it would be useful to reproduce just a few lines from the commentary of the Criminal Procedure Code by Chitley, Volume 4, 1956 Edition on section 476, note

10. It runs as under :‑ "The Court need not and should not decide the question of guilt or innocence of the party against whom proceedings are taken. But before setting the criminal law in motion the Court should exercise great care and caution and it must be satisfied that there is reasonable intention for the charge in respect of which the prosecution is directed. No prosecution ought to be directed unless there is a reasonable probability of conviction. The words "appears to have been committed" also show that the intention of the Legislature is that there must be sufficient material before the Court to show that an offence is likely to have been committed." In this case it would appear that except the bare allegation of the witnesses that they made statements under police pressure there is no independent material to support their allegation. 'the fact that they being very near relations of the accused persons may be trying to help the accused cannot be ignored. On the other hand, as I have already mentioned, the fact being that Mst. Rahiman having not died as a result of suicide would give strength to the statements that they had made earlier.

8. I am of the opinion that there is not sufficient material before the Court to make out a prima facie case against the, appellants.

9. Mr. Tufailali A. Rahman cited certain cases in support of the contention that where the complaint is likely to end in acquittal the Court may take this into consideration in considering the question whether it will be expedient in the interest of justice to make a complaint. He relied on A I R 1927 Lah. 352 (Sube Khan v. Emperor); A I R 1934 All. 1065 (Ali Naqvi v. Sheikh Baqridu and others). In this connection reference was also made to the commentary by Chitley on the Criminal Procedure Code, Vol. 3 p. 2598 under which a large number of cases are mentioned in support of the proposition that no prosecution ought to be directed unless there is a reasonable probability of conviction. It is not necessary for the decision of this case to examine the proposition enunciated in these cases as I have already held that in the circumstances of the present case the prosecution has failed to make out a prima facie case.

10. I would, for the reasons given above, allow the appeal and direct that the complaint be withdrawn. The appellants have furnished bail. Their bail bonds are cancelled. K. B. A./A. H. Appeal accepted.