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Criminal Revision No. 186 of 1960, decided on 11th May 1960.

S. 253 (2) Omission to examine all prosecution witnesses‑No ground by itself to set aside order of discharge‑Revisional Court to see whether order cannot be sustained on material brought on record or whether order is "perverse or foolish"‑Also whether setting aside order will be in interest of justice keeping in view gravity of offence anti time elapsed since commission of offence‑Criminal Procedure Code (V of 1898), S. 439.

When an order of discharge passed under subsection (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 consideration is whether it will be in the interests of justice to set aside an order of discharge, keeping in view the gravity of the offence, and the time which had elapsed since commission of the offence.

The, accused was prosecuted under section 29, Telegraphs Act (XIII of 1885) for sending an allegedly false telegram. The accused admittedly had been involved in litigation with his relatives who appeared to have turned enemies, and the telegram was sent ‑to authorities to seek protection of the police. On the basis of the material brought on the record it could not be said that accused's apprehensions were baseless, the telegram could not be termed false or which the petitioner had reason to believe to be false. The alleged offence, moreover, had taken place nearly two years before the case came up to the High Court in revision.

The High Court declined to set aside the order of discharge.

Irrelevant remarks‑Against witnesses or third persons‑Highly deprecated.

M.B. Khizar Tamimi for Petitioner.

Zaheer Abbas for Respondent.

Date of hearing: 11th May 1960.

This is a revision petition directed against an order dated the 11^th of February 1960 passed by the learned District Magistrate of Jhang, directing further inquiry into a criminal case started against the petitioner under section 29 of the Telegraphs Act. The petitioner was placed on trial before Mr. Shaukat Ali Khan, Magistrate of the 1st Class at Jhang, but was discharged under the provisions of subsection (2) of section 253 of the Criminal Procedure Code. The prosecution went up in revision to the learned District Magistrate who passed the impugned order, holding that a large number of prosecution witnesses had not been examined by the trial Magistrate and, therefore, it is a fit case where further inquiry should be held.

2. The revisional order of the learned District Magistrate is challenged before me mainly on the following grounds :‑ ,

(a) That the trial Magistrate was fully competent to discharge the accused‑petitioner under the provisions of subsection (2) of section 253 of the Criminal Procedure Code at any stage of the trial if he a to the conclusion that the charge was ground less,

(b) That in any case all the material witnesses had already 'been examined and no useful purpose" would have been served by prolonging the trial

(c) That the learned District Magistrate has not recorded any finding that the order of discharge was perverse or foolish.

3. 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 subsection (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, think should be borne in mind is whether it will be in the interests as 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. In the present case the telegram in question, which is the subject‑matter of the trial, is dated the 21st of June 1958. In other words, the offence was committed nearly two years ago. It would appear, there face, that for the order of discharge to be set aside in this case, there must lie strong reasons to show that the order of discharge is unjustified on the record and is perverse or foolish, leading to a manifest failure of justice. This does not appear to me to be the case here. The telegram itself, when analyzed, only means this that the petitioner apprehended danger to his life from certain persons named in the telegram, and that he implored the police authorities to depute a D. S. P. to take immediate action. He also referred to the delay which was taking place in investigating the case regarding the kidnapping of his minor grandson Shahzada. In the concluding portion of the telegram an allegation was made that the persons named therein had been guilty of committing heinous offences in the past as well and that they were friendly with certain police and civil officers. Now, the evidence recorded by the trial Magistrate has made it clear that there is a long history of litigation and enmity between the petitioner before me and the persons named by him in the telegram as his enemies from whom he apprehended danger to his life. On the basis of the material brought on the record it cannot be said that the apprehensions were. baseless. It may be that there is no evidence to show as to what ‑connection the persons. named in the telegram had with the un‑named police or civil officers, but that by itself is not the important part of the telegram. The important part is that the petitioner was apprehensive from the persons named by him and he sought protection of the authorities. it is clear to me, therefore, that the telegram‑ is not one which can be termed to be false or which the petitioner had reasons to believe to be false. The intention behind the telegram was not pure mischief, but it was an earnest‑desire to expedite the investigation of the case regarding the kidnapping of his grandson and also to seek protection of the authorities. That being the case, I think the learned Magistrate was right in coming to the conclusion that the charge against the petitioner was, groundless. It Was not necessary for, him to examine all the prosecution witnesses cited the calendar of witnesses. I consider, therefore, that the order of discharge passed by the learned Magistrate cannot be termed to be un justice on the record or to be perverse and foolish. There was, therefore no justification to interfere with ibis order simply for tile reason that all the prosecution witnesses had not been examined.

4. I have already observed that nearly two years have already elapsed, since the ending telegram was sent, and I cannot see how ends of‑justice would be served by prolonging the agony of a man who is admittedly involved in litigation with relatives who have turned enemies. For all these reasons I would set aside the order of the learned District Magistrate and accept the present petition.

5. Before I close I would, however, like to observe that the learned trial Magistrate seems to me to have indulged in certain irrelevant observations about the conduct of various witnesses and other persons who were not directly arraigned before him. Any tendency on the part of, a judicial officer to indulge in such observations is highly to be deprecated. A copy of these remarks shall be communicated to the trial Magistrate, Mr. Shaukat Ali Khan, for future, guidance.

A. H. Petition accepted.

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