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Criminal Revision No. 65 of 1972, decided on 18th September 1973.

‑‑Ss. 436 & 439‑Revision‑Discharge of accused‑Prosecution witness stating applicant/complainant to have been arrested or confined by a police officer‑Other prosecution witnesses stating accused to have been with such police officer‑Place of arrest a shrine with many other persons assembled‑Conclusion not possible of complainant having been arrested at instance of accused‑No evidence whatsoever of instigation or conspiracy‑Complainant arrested being involved in illegal transportation of Pakistani nationals out of Pakistan‑Evidence, held, not sufficient for issuance of process and accused rightly discharged‑Penal Code (XLV of 1860), Ss. 220/ 343/500 and 109.

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‑‑ S. 202‑Preliminary inquiry‑Evidence‑Magistrate in inquiry under S. 202‑Cannot overlook broad features in evidence rendering same doubtful or unbelievable‑Magistrate, held. acted correctly in discus sing evidence of witnesses‑Contention that at stage of preliminary inquiry Magistrate could not embark upon appreciation of evidence or consider question of interestedness of witnesses‑Held, not acceptable.

A. Aziz Khaskheli for Appellant.

Haji Muhammad A. Memon and Naqvi for Respondents.

Date of hearing : 13th September 1973.

This is an application for Revision of an order passed by the Sub. Divisional Magistrate, Shah Bunder, whereby the former had dismissed the complaint filed by the applicant Mohd. Soofan against the respondents Mohd. Amin Qureshi, a retired Deputy Superintendent of Police, Mohd. Anwar Shaikh a Sub‑Divisional Magistrate and Khalifa Haji Ghulam Hussain, a Zamindar of Chuhar Jamali.

2. At the relevant time applicant Mohammad Soofan was a Head Constable of Police of Chuhar Jamali Outpost. He filed a complaint in the Court of District Magistrate, Thatta on 5‑11‑1969 alleging commission of offences under sections 220/343/500, P. P. C., read with section 109, P. P. C., against the respondents. The allegations were that on 20th November 1969, be had been wrongfully detained as a partner in Quarter No. 2 of Haji Khan, Head Constable. It was further alleged that respondent Mohd. Amin, the Deputy Superintendent of Police had wrongfully confined him at the instigation of the remaining respondents. The District Magistrate of Thatta transferred the case to the Court of Sub‑Divisional Magistrate, Shah Bunder who after holding preliminary enquiry dismissed the complainant under section 203, Cr. P. C. The complainant carried a Revision to the Court of Sessions challenging the order of dismissal of complaint but the said Revision application also did not meet with success so that the present petition has been filed.

3. The respondent Mohd. Amin Qureshi has died and the Revision Application as against him has abated. Respondent Mohd. Anwar has not made appearance in this Court whereas the respondent Khalifa Ghulam Hussain has been represented by Mr. Haji Mohammad Memon. Mr. Abdul Aziz has appeared for the applicant.

4. The learned Sub‑Divisional Magistrate bad in this case examined seven witnesses. In the order of dismissal of complaint he has discussed the evidence of all the seven witnesses and has come to the conclusion that no case has been made out against the respondent Mohd. Anwar and Khalifa Haji Ghulam Hussain; the case against Mohd. Amin Qureshi having abated by reason of the latter's death. On perusal of the order I am satisfied that there were no good grounds for proceeding in the complaint and the findings of the learned Magistrate were correct and justified. In fact the main evidence with regard to the case of wrongful confinement was given by Head Constable Haji Khan. This witness has clearly stated that it was Mohd. Amin Qureshi, the Deputy Superintendent of Police, who had arrested or confined the present applicant‑complainant. All that the remaining witnesses had stated in the preliminary enquiry with regard to the respondents Mohd. Anwar and Khalifa Ghulam Hussain was that they were with Mohd. Amin, the Deputy Superintendent of Police. The place where they were seen together was the Shrine of Ashraf Shah, where so many other persons were also present. This circumstance by itself does not lead to the conclusion that complainant Mohd. Soofan was arrested at the instance of Mohd. Anwar or Khalifa Ghulam Hussain. In fact the allegation made in his own case in regard to complicity of Mohd. Anwar and Ghulam Hussain was only to the extent that they had instigated Mohd. Amin Qureshi, or had acted in conspiracy. There is no evidence whatsoever of instigation, nor has a case of conspiracy been established. It appears from the order of the learned Magistrate that the complainant, who is the present applicant was involved in illegal transportation of Pakistani Nationals out of Pakistan. In fact the complainant bad also been suspected earlier to this incident and such fact is stated in the order.

5. The learned Advocate for the applicant has, however, made grievance that at the stage of preliminary enquiry it was not open to the Magistrate to embark upon appreciation of evidence or consider tile question of interestedness of witnesses. I am unable to accept such a submission because a preliminary enquiry is ordered only when the Magistrate before whom a complaint is filed is not satisfied with regard to the justification of issue of process. It is under such circumstances that preliminary enquiry is held, in order to ascertain the truth of the allegation. In such enquiry the Magistrate cannot overlook the broad features in the evidence, which render the same doubtful or unbelievable. In my mind the acceptance of any different view will defeat the very purpose of section 202, Cr. P. C. The learned Magistrate acted correctly in discussing the evidence of the witnesses. In any case the allegations of wrongful confinement, if any had been made only against Mohd. Amin Qureshi, who bad died and against whom these proceedings have abated. Coming to the order of the learned Additional Sessions Judge, I find that Le has come to a definite conclusion that the evidence led at the stage of preliminary enquiry related mainly to Mold. Amin, the Deputy Superintendent of Police and as far as concerned, only subsidiary part has been assigned to them and whatever had been stated against them did not provide sufficient material for issuance of process. Such a finding was eminently justified on facts and I see no fault that such finding, more so when admittedly it was Amin Qureshi, who had wrongfully confined the complainant.

I am satisfied that this revision is without substance and the same is dismissed.

Revision application dismissed.

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