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Criminal Revision No. 76 of 1964, decided on 14th October 1969.

S. 253(2)‑Discharge of accused‑ Magistrate satisfied, on basis of evidence already recorded, of no prima facie case being established against accused --Not bound to examine further evidence and competent to discharge accused‑Material witnesses already examined contradicting pro secution version, Magistrate's observation that further evidence of remaining official witnesses would not improve fate of case, held, not faulty‑Order of discharge upheld.

The petitioners were facing trial under section 6 of the Public Order (Political Uniforms) Ordinance, 1958. The evidence of two material witnesses did not establish a prima facie case against the accused. The Magistrate, after observing that the evidence of the remaining witnesses who were official witnesses even if recorded would not improve the fate of the case, discharged the accused. While accepting revision the District Magistrate direct ed the trial Magistrate to record the evidence of the remaining witnesses.

Held : Subsection (2) of section 253, Cr. P. C. gives ample power to a trial Court to discharge an accused person at any stage of the case, if, for the reasons to be recorded by him, he considers that the charge is groundless. It was not, under the circumstances, necessary for the trial Magistrate to go on with the case and examine further evidence, when he was not satisfied with the statements already recorded by him.

Sheikh Muhammad Amin v. The Superintendent of Police, Jhang P L D 1960 Lah. 684; Mst. Saeeda Begum and others v. The State P L D 1960 Lah. 1005 and Saeeduddin Qureshi v. The State P L D 1963 Kar. 54 ref.

Kh. Shaukat Ali for Petitioners.

Wahid‑ud‑Din Virk for the State.

Date of hearing: 14th October 1969.

The petitioners were sent up for trial under section 6 of the Public Order (Political Uniforms) Ordinance, 1958, on an allega tion that on 14th March 1963, at 11 a.m., while donning on the uniform of Khaksar, they presented guard of honour to the Ghilaf‑e‑Ka'aba at the platform of Railway Station, Gujrat in contravention of the provisions of section 3 ibid.

2. Khan Azmat Ullah Khan, Additional District Magis trate, Gujrat, recorded statements of Muhammad Sharif and Muhammad Zaman, prosecution witnesses and came to the conclusion that their testimony did not establish a prima facie case against the petitioners. He, therefore, after observing, that the evidence of the remaining witness, namely, Khan Haq Nawaz Khan, Assistant Group Officer would not, in any way, improve the fate of the case, discharged the accused‑petitioners under section 253, Cr. P. C. by his order, dated 28th May 1963.

3. The State went up in revision before the District Magistrate, who accepted the revision and directed the lower Court to record the entire evidence. He based his decision on the fact that the statements of three more witnesses had yet to be recorded.

4. The three witnesses, who were to be examined are Khan Haq Nawaz Khan, mentioned above, Assistant Sub- Inspector, Muhammad Anwar Khan and Sub‑Inspector Muhammad Saleem. All of them are official witnesses. Having gone through the statements of Muhammad Sharif and Muhammad Zaman P. Ws., I am of the view, that the finding of the trial Court, that a prima facie case has not been established against the petitioners, is not faulty. I also agree with his observation, that even if the evidence of the remaining witnesses is recorded, this would in no way improve the prosecution case. Subsection (2) of section 253, Cr. P. C. gives ample power to a trial Court to discharge an accused person at any stage of the case, if, for the reasons to be f recorded by him, he considers that the charge is groundless. Muhammad Sharif P. W. deposed, that the accused were not donning on Khaki uniform and they were not wearing Khaksar badges. Muhammad Zaman P. W. made a conflicting state ment. He deposed, at one stage, that the accused were wearing Khaki clothes and had also put on red badges, but subsequently he deposed, that there was lot of rush and that he was not in a position to state, whether the accused were amongst those persons, who were at the Station, with the view to prevent the people from going to the side of the ladies. They were the only two material witnesses in the case and when they do not involve the petitioners, their discharge does not appear to me to be faulty. It was not, under the circumstances, necessary for the trial Magistrate to go on with the case and examine further evidence, when he was not satisfied with the statements already recorded by him.

5. In Sheikh Muhammad Amin v. The Superintendent of Police, Jhang (P L D 1960 Lah. 684) Mr. Justice S. A. Haq observed : ‑

"It is clear that subsection (2) of section 253 of the Criminal Procedure Code does empower a Magistrate to discharge an accused person at any stage of the case, for reasons to be recorded by the Magistrate, if he considers the charge to be groundless. It seems to me, therefore, that when an order of discharge passed under sub section (2) of section 253 is to be set aside, it is not enough to say that the Magistrate had not examined all the prosecution witnesses. The Court which is asked to set aside such an order of discharge must examine whether the finding of the Magistrate that the charge is groundless cannot be sustained on the material already brought on the record and also whether the finding is perverse or foolish. Another important consideration which, I think, should be borne in mind is whether it will be in the interests of justice to set aside such an order of discharge, keeping in view the gravity of the offence, and the time which might have elapsed since the alleged commission of the offence."

6. In Mst. Saeeda Begum and others v. The State (P L D 1960 Lah. 1005) Mr. Justice N. A. Mahmood took almost a similar view, as taken in the earlier judgment mentioned above.

7. These cases were followed in Saeeduddin Qureshi v. The State (P L D 1963 Kar. 54) by Mr. Justice H. T. Raymond.

8. Applying the observations, in the aforementioned cases, to the facts of the present case, I am of the considered view that the order of the trial Magistrate is neither perverse nor foolish and can be maintained on the material that has already been brought on the record. The occurrence took place on 14th March 1963. The petitioners were discharged by the Additional District Magistrate on 28th May 1963. The offence, even if proved, appears to be of a trial nature. More than six years have passed, when the occurrence took place. Under the circumstances, I am not inclined to hold, that it is a fit case, in which the order of the District Magistrate, direct ing the trial Magistrate to record the entire prosecution evidence should be upheld. I, therefore, while allowing the revision petition, set aside the order of the District Magistrate and restore the order of the Additional District Magistrate, by which the accused were discharged.

A. E. Revision petition allowed.

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