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Criminal Revision No. 338 of 1972, heard on 4th February 1975.

--S.209, 210 & 213---Commitment to Sessions Court-Commit ting Magistrate finding case fit for committal and committing accused for trial under S. 304 instead of S. 302-Such order, held, illegal-Committing Magistrate, if satisfied as to existence of a prima facie case ought to have committed accused under S. 302 and not under S. 304-Penal Code (XLV of 1:860), Ss. 302 & 304.

A committing Magistrate is entitled to appreciate the evidence in order find whether there are or not sufficient grounds for committing, the accused person to trial. He must appreciate the evidence from that point of view only. A Magistrate ought to commit a case when the evidence is enough to put the occused on his trial and such a case obviously arises when credible witnesses make statements which if believed would sustain a conviction. Weighing their evidence with regard to improbabilities, apparent discre pancies and extenuating circumstances, if any, is more properly the function of the trial Court. It is neither necessary for nor required of the Magistrate to examine the evidence with meticulous care to consider the probabilities of conviction against one or the other of the alternative offences, or to come to a conclusion on doubtful points. There is no dearth of authorities to support the view that in cases where death appear; to lave resulted for injuries voluntarily inflicted by the accused, the Magistrate ought to be very careful not to take it upon himself to absolve the accused from the graver charge. Mazharul Haq v. Ishaq Sardar etc. P L D 1962 S C 480; Muhammad Aslam's case P L D 1967 S C 539 and William v. Sadiq and others 1968 PCr.LJ132rel.

Abdul Rashid v. The State P L D 1972 S C 295 Hari Balloav Shaha Roy v. Gopi Balloav Shaha P L D 1959 S C 347 ; Shamsuddin and another v. The State P L D 1958 Lab. 871 and Ghulam Ahmad v. The State P L D 1958 Pesh. 20 ref.

--S.439-Revision-Committing Magistrate committing accused for trial under S. 304-Petition to amend charge-Contention that petition not competent being premature as trial Court alone has power to amend or reframe charge after recording evidence, held, not correct-High Court competent to examine and rectify illegality of commitment order--Penal Code (XLV of 1860), Ss. 302 & 304.

----S. 439-Revision - Revision against commitment order filed directly in High Court-Fact that Court of Session has also power of revision, held, does not affect jurisdiction of High Court- Revision pending in High Court for about 3 years-Referring parties to Court of Session at belated stage, held, not proper.

Muhammad Jamall Qureshi for Petitioner.

Mian Ataur Rehman for A.-G. for the State.

Saeedur Rehman Khan for Respondent No. 2.

Date of hearing: 4th February 1975.

This criminal revision, filed by the complainant in the case, challenges the legality of the order of commitment recorded by Magistrate 1st (:lass, Kamalia, on 23-2-1972. The inquiry against accused Muhammad Siddiq had proceeded under section 302, P. P. C Eye-witnesses testified to the effect that the accused and the deceased had quarrelled in the midst of which they accused had taken out a knife from his right dab and had inflicted injury on the right dual. The medical evidence supported the presence of such injury and the fact that the death had resulted from the same. At the end of the inquiry the learned Magistrate found that the prosecution story had been supported by all the witnesses, that the evidence produced demanded that the case should be tried in the Court of Sessions, and that it was a fit case for committal, but he, without recording any specific reason, committed A the case not under section 302, but under section 304, P. P. C. under which he had charged the accused. The contention of the petitioner is that once the learned Magistrate was satisfied as to the existence of a prima facie case against the accused, he should have committed the case under section 302, P. P. C. and that it was not competent of him to decide the question whether the offence fell under section 302 or under section 304, P. P. C. as that would be pre-judging the trial which was yet to be held by another Court, Le. the Court of Session.

2. A committing Magistrate is entitled to appreciate the evidence in order to find whether there are or not sufficient grounds for committing the accused person to trial. He must appreciate the evidence from that point of view only. A Magistrate ought to commit a case when the evidence is enough to put the accused on his trial and such a case obviously arises when credible witnesses make statements which if believed would sustain a conviction. Weighing their evidence with regard to improbabilities, apparent discrepancies and extenuating circumstances, if any, is more properly the function of the trial Court. It is neither necessary for nor required of the Magistrate to examine the evidence with meticulous care to consider the probabilities of conviction against one or the other of the alternative offences, or to come to a conclusion on doubtful points. There is no dearth of authorities to support the view that in cases where death appears to have resulted from injuries voluntarily inflicted by the accused, the Magistrate ought to be very careful not to take it upon himself to absolve the accused from the graver charge. In Mazharul Haq v. Ishaq Sardar etc. (1) P L D 1962 S C 480 their Lordships had dealt with the point in the following words:-

"A case is conceivable where the prosecution evidence fails altogether, and quite plainly, to make out a prima facie case, and there, of course, the Magistrate would discharge. But what appears to have been accepted by all the Courts in this case hitherto is that if the defence, or any question of fact, which forms an ingredient of the case, sets a different version, the effect is to annul even the prima facie case, on the ground of 'reasonable doubt' The correct position is that the matter is placed in issue between the parties, and becomes fit matter for trial by a competent Court, which alone can allow the benefit of 'reasonable doubt', and then only after having beard the case in full."

The above view had been reiterated in Muhammad Aslam's case (2) P L D 1967 S C 539 and it had been further observed :-

"The principle underlying this construction of section 210 is that it is not within the domain of the Inquiry Magistrate to make assessment of the evidence. That is the function of the trial Court which prepares its own record of evidence and in the light of that evidence determines the innocence or guilt of the accused person."

3. The authority in Mazharul Haq's case had been followed in William v. Sadiq and others (3) 1968 P Cr. L J 132

in deciding a question identical to the one raised in the present petition, and it had been held :-

"There is no doubt that the Court can take into consideration the evidence and pass an order, but a committing Magistrate is not required to decide the issue whether a case is one under section 304 or under section 302, P. P. C. if a prima facie case is made out, then the function of the committing Magistrate is to commit the case to the Court of Session for trial. However, if there are no sufficient reasons or no evidence, the learned Magistrate is competent to pass an order of discharge."

Upon this view, the order of commitment had been set aside upon a reference received in that regard from the Court of Session.

4. Mr. Saeed-ur-Rehman Khan, learned counsel for the accused-respon dent, however, urged that the committing Court was competent under section 210, Cr. P. C. to declare "with what offence the accused is charged", and that the committing Court could commit the case only for that offence which was made out by the prosecution before him and not what was merely alleged in the F. 1. R. In this connection, he urged that the case against the accused would actually fall under section 325 and not even under section 304, P. P. C. under which he has been charged by the committing Court. He also relied on the aforesaid cited case of Mazharul Haq as well as on the cases reported in P L D 1972 S C 295, P L D 1959 S C 347, P L D 1958 Lah. 871 and P L D 1958 Pesh. 20. 1 have gone through these rulings but I do not find anything therein to justify any deviation from the view taken in Mazharul Haq's case. Abdul Rashid's case P L D 1972 S C 295 does not make any departure from their Lordships earlier view on this specific point. The only case which could be said to come closer is the Peshawar case P L D 1958 Pesh. 20 but I find that the point in controversy therein has not been identical with the one before me, and in any case the ruling in Mazharul Haq's case must supersede all previous rulings if any. I am, there fore, inclined, with respect, to follow the view taken by this Court in William's case which is backed by the authority in Mazharul Haq's case. I follows that if the committing Court is satisfied as to the existence of prima facie case against the accused, then the Court ought to have committed B him under section 302 and not under section 301, P. P. C

5. Mr. Saeedur Rehman further contended that the petition was not competent being premature, as the trial Court would have the power to amend or reframe the charge when the trial commenced. This would not mean that the illegality of the commitment order should not be examined and rectified by this Court in its revisional jurisdiction. It was also urged that the revision should, in the first instance, have been filed before the Court of Session. The fact that the Court of Session has also the power of D revision does not affect the jurisdiction of this Court. Moreover, this revision has been before this Court since 1972 and it will not be proper to refer the parties to the Court of Session at this belated stage.

6. In the result the revision petition is allowed, the order of commit ment is set aside and the learned committing Court is directed to proceed according to law.

Petition accepted.

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