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Criminal Revision No. 2 dated 2nd January, 1952, decided on 26th February, 1952 against the order of the Magistrate 1st Class at Chishtian, dated the 27th November, 1951.

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---- S. 439‑Revision Reference by Additional District Magistrate recommending quashing of charge‑Whether High Court would examine evidence to consider if charge correctly framed.

It is not the duty of the High Court in a reference made by the Additional District Magistrate against the order of framing a charge to examine the evidence to consider whether the charge was correctly framed.

It is premature for the High Court to give verdict in Reference proceedings under sections 345, 439, Cr. P. C., with regard to the sufficiency or otherwise of the evidence existing on the record.

Budhavaram Narasimhulu Chetti v. Noota Ibbundrum Naga ram Varu, 1923 Mad. 434 and Amarlal Wassanmal Hingoram v. Emperor 1945 Sind 51 ref.

This is a reference by the learned Additional District Magistrate at Bahawalnagar recom mending that a charge framed under section 392, Pakistan P. C. against Dur Muhammad and Ghulam Qadir by a Magistrate 1st Class at Chishtian be quashed. I regret I am unable to agree with this recommendation. The facts which led to this reference may be stated briefly as follows :‑

One Abdul Qadir lodged a report at the Police Station Khairpur alleging that Allah Wasaya, Dur Muhammad and Ghulam Qadir had forcibly deprived him of Rs. 823‑8‑0 and also has caused hurt to him. The police registered a case under section 392, Pakistan P. C., against all the three aforesaid persons. The case was tried by the Magistrate 1st Class at Chishtian, who after recording the evidence framed a charge under section 392, Pakistan P. C., against all the three persons, namely Allah Wasaya, Dur Muhammad and Ghulam Qadir. An application under section 435, Pakistan P. C., was put in by the accused in the Court of the learned Additional District Magistrate at Bahawalnagar and it was alleged that the evidence existing on the record did not justify the framing of a charge under section 392, Pakistan P. C. The learned Additional District Magistrate after going through the record and sifting the evidence was of the opinion that there was no evidence which could furnish a ground for framing a charge under section 392, Pakistan P. C., against Ghulam Qadir and Dur Muhammad. He was further of the opinion that at the most the statements of the witnesses warranted a charge under section 323, Pakistan P. C., against Ghulam Qadir and Dur Muhammad. He has, accordingly, submitted the record to this Court with the recommendation that so far as Ghulam Qadir and Dur Muhammad are concerned the charge under section 392, Pakistan P. C., against them be quashed.

I may point out that it is not the duty of the High Court in a reference made by the Additional District Magistrate against the order of framing a charge to examine the evidence to consider whether the charge was correctly framed. In the present case the record does not show that there was no material to justify the framing of a charge under section 392, Pakistan P. C. There was some evidence existing on the record against the accused and the Magistrate was within his rights to frame a charge under section 392, Pakistan P. C. There is, however, nothing on the record to show that the order of the learned Magistrate was perverse. Reference in this connection may be made to Budhavaram Narasimhulu Chetti v. Noota Ibbundrum Nagaram Varu 1923 Mad. 434, where Wallis J. was pleased to observe as follows:‑

"There must be some substantial error of law to justify the Court, exercising its exceptional power of revision. The evi dence before the lower Court has not been properly appre ciated is no ground for interference in revision."

I may also in this connection refer to Amarlal Wassan Mal Hingoram v. Emperor 1945 Sind 51, where the following obser vations were made :‑

"The question of appreciation of evidence in a criminal trial was entirely within the province of the presiding Magistrate. It was his right to appreciate it rightly or wrongly. If he appreciated wrongly the error could be cor rected by the Chief Court in appropriate proceedings."

In the above quoted rulings the learned Judges were asked to examine the material and on examination of it to interfere with the order of the Magistrate in revision, but they however declined to interfere.

The counsel for the petitioners (Mr. Chishti) could not cite a single authority empowering this Court to go into the evidence at this stage. I consider it premature for this Court to give a verdict with regard to the sufficiency or otherwise of the evidence existing on the record. The Magistrate has only framed a charge and the perusal of the record does not convince me that the charge was framed on no evidence. I, therefore, do not accept the recommendation of the learned Additional District Magistrate and reject this reference. I may, however, be not understood to prejudice or influence the trying Magistrate in the final decision of this case.

A. H.

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