P (PLP)

Saleem Aslam, for Petitioner. ORDER.

‑Briefly stated the facts giving rise to this revi sion are that the accused‑petitioners were challaned by Police under section 392, Pakistan Penal Code, and the case was heard by the Additional District Magistrate, Bahawalpur. After recording the prosecution evidence the Additional District Magis trate discharged the accused persons. The complainant‑respon dent lodged a revision petition in the Court of Sessions judge against the order of discharge. The learned Sessions judge in the exercise of his powers under section 436, Criminal Procedure Code, revived the prosecution case and sent it back for further inquiry to the original Court. The accused persons are not satisfied with the order passed by the learned Sessions judge and they have instituted this revision to set it aside. Notice was given to Government Advocate who appeared before me and not being inclined to support the prosecution case stated that representation by the Crown was unnecessary. The com plainant‑respondent has appeared and I have heard the parties. The allegations of the complainant are that his tonga pulled by his horse was to race with the tonga and horse belonging to Noor Mohammad accused, on the condition that the loser was to pay the winner Rs. 1,000 or in default thereof, his tonga with horse was to be made over. As agreed upon by the parties, on the ap pointed day the race was held with the result that the com plainant failed to succeed on account of certain obstacles put in his way by Noor Mohammad accused. His further allega tions are that there was a dispute between them and it was referred to the arbitrators who decided that no one had gained victory and the race was to be held over gain. But, in spite of their decision all the accused persons way‑laid the complainant on the same day and stole his tonga with horse by show of force. From the perusal of the original record it is disclosed that six important witnesses were produced by the prosecution, out of which 11.7ohammad Mian, Sheikh Abdul Rahman and Jaflar Shah, the arbitrator did not support the prosecution story. The trial Magistrate relied upon their evidence and did not believe the evidence of Mohammad Bakhsh and Syed Ali Shall (P. Ws.) for the reasons that the former was the servant of the com plainant and the latter had deliberately spoken lie. It was pointed out about Syed Ali Shah (P. W.) that he was a "Surpunch" of Panchayat and a register kept under his super vision for recording the proceedings of the Meetings of Pan chayats proved that he had been busy the whole day with the work of Panchayat on the day of occurrence and had conse quently no time to go out at a distance of a few miles to witness the occurrence. The learned Sessions judge recorded his further evidence in order to elucidate his statement and on the strength of the additional statement he remanded the case for further inquiry. The moot points in this revision are the following :‑ (1) Whether the Sessions judge acted within his jurisdiction to record additional evidence? (2) Whether the order of remand is based on merits? The provisions of sections 437 or 436 of the Criminal Procedure Code do not vest jurisdiction in the Sessions judge or the District Magistrate to call for fresh evidence in order to fill deficiencies in the prosecution evidence already on the record. This principle was enunciated by the Division Bench of Calcutta High Court in the following manner:‑ "Section 437 of the Criminal Procedure Code does not authorise a Sessions judge or a District Magistrate to take evidence or to direct evidence to be taken supplementing the evidence given in the lower Court." Vide 6 Cr. L. J.

279. There is no contrary view on this point and, there fore, the additional evidence recorded by the Sessions Judge was not within the ambit of his revisional powers. On the second question whether the order of the learned Sessions judge was based on material facts patent on the record, it may be judged in the light of certain accepted tests for setting. aside the order of discharge. In my opinion the principles governing the' acceptance of an appeal from the order of acquittal should bed applied when further enquiry is ordered in the case of an accused who has been discharged. In a decision reported in 53 I. C. 817, Mr. Justice S. Aiyar expressed himself in the following words:‑

"The Revisional Court has only to see whether the evidence is of such a character that it is possible to come to only .one conclusion upon it, viz , that the accused has been guilty and that there has been miscarriage of justice consequent upon the one‑sided or perverse view taken by the trial Magistrate." Again in a ruling reported in 138 I. C. 142, Raza justice was of opinion that unless evidence is ignored or overlooked by a Magistrate or that his view was palpably unreasonable the order of discharge could not be disturbed in revision. In the present case the trial Magistrate took into consideration all the prosecution evidence on the record and also the fact that the First Information Report, was lodged after delay of twenty‑one days, for which no reasonable explanation was given by the complainant. Under these circumstances he emphatically held that it was a concocted story. I do not think that section 436, Criminal Procedure Code, was ever intended for a case like this. The trying Magistrate was justified in his finding of facts that he did and merely for the reason that the learned Sessions judge could not agree with his opinion was no ground for ordering further enquiry. Hence I set aside the order of the learned Sessions judge and accept the revision petition. Announced. A. H. Petition accepted.