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Criminal Revision No. 119 of 1963, decided on 12th August 1963.

, Ss. 209 & 210--- Words "sufficient grounds for committing"‑Interpretation‑Prima facie case made out by prosecution‑Inquiry Court bound to commit accused for trial‑Weighing prosecution evidence with regard to probabilities or identity of accused‑Function of Sessions Court and not that of committing Court.

Hari Ballav Shaha Roy v. Gopi Ballav Shaha and Government of East Pakistan P L D 1959 S C (Pak.) 347 and Ramgopal Ganpatrai Ruia and another v. State of Bombay P L D 1958 S C (Ind.) 293 ref.

, Ss. 435 8c 209 Order of discharge under S. 209 by inquiry Magistrate after examination of accused and close of prosecution evidence- Revision against order of discharge‑Re visional Court setting aside order should send back case to inquiry Magistrate directing him to frame charge against accused and commit them to Sessions Court -Entrusting case to another Magistrate for inquiry and trial afresh, Held, not proper.

S. Masoom Shah for Petitioners.

Sher Bahadur Khan A. A.‑G. for Respondent.

Date of hearing : 12th August 1963.

This revision petition is directed against the order dated 13th April 1963, of the learned District Magistrate, Peshawar where under he set aside the order of discharge under section 209, Cr. P. C., recorded by Mr. Abdul Aziz Khan, Magistrate l st Class, Nowshera, of the three respondents for offences under sections 302/34 and 307/34 P. P. C., and directed Muhammad Tariq, C.S.P., Assistant Commissioner, Nowshera, to try afresh and decide on merits the case.

2. The revision petition raises an important question in regard to the interpretation of the term "sufficient grounds for committing" occurring in sections 209 and 210 of the Cr. P. C.

3. The material facts leading up to this revision petition shortly are that the three petitioners namely, Masood Gul, son of Habibullah, Tauheed Gul, son of Faqir Gul, and his brother Mehrab Gul, were challaned under sections 302/34 and 307/34, P. P. C. for having on 6th October 1962, in the early hours, in furtherance of their common intention, shot dead their co‑villager Kishwar, son of Zarin Khan, and caused firearm injury to his son Mirbaz Khan (P. W. 6), while they were sleeping in the verandah of their arhat. The F. I. R., Exh. P. A., was lodged by Mirbaz Khan (P. W. 6) at Police Station Akora, at a distance of 5 miles, at 7‑45 a.m. The gist of the report was that the deceased along with Mirbaz Khan (the deponent) was lying asleep in the verandah of the arhat when in the early hours the latter was awakened by two shots and saw the three respondents of whom Tauheed and Masood were armed with tamanchas, while Mehrab Gul was armed with a tapak, that Tauheed fired the third shot, but he could not say if it had hit his father, though the first two shots fired by the other two accused had hit his father and then Tauheed fired a shot which hit him.

4. Dr. Abdur Rauf Khan (P. W. 4) performed the post mortem examination on the dead body of Kishwar, on 6‑10‑62 at 1 p.m. and found the following on external examination:‑

(1) A gunshot wound, 1" x 1", on the right middle back, 3" from the angle of scapula.

(2) Five exit gunshot wounds each, 1/3" x 1/3", on the front of right side of chest covering an area of 5" x 5" around the nipple.

On internal examination the doctor found the 4th rib fractured. Right pleurae and right lung were injured. The heart was also injured, and the stomach was found empty. Death was due to shock and haemorrhage, and injuries to heart and right lung, as a result of firearm.

5. The same doctor also examined Mirbaz Khan (P.W.6), and found an entrance firearm wound, " x " on the front and outer side of left upper arm, 2 ", above the elbow joint. The injury was caused by a firearm within 8/9 hours duration.

6. Before the inquiry Court the prosecution examined as many as 12 witnesses, including Mirbaz Khan (P. W. 6) and one Azam Khan (P.W.1). Azam Khan (P.W.1) deposed that he was irrigating his land at some distance from the scene of occurrence before morning prayers time when he heard three shots and after some time saw the "three accused Mehrab Gul, Masood Gul and Tauheed Gul came out of the maize crop of Khan Bahadur." The learned inquiry Court after examining the accused by his order dated 19th February 1963 discharged the accused under section 209, Cr. P. C. The principal reason which prevailed with the learned inquiry Court in discharging the accused is better reproduced in his own words, when in para. 3 of the judgment he observed :‑

The occurrence is of the time, when the identity of the accused cannot be ascertained. It happened in the early hours of the morning of 6‑10‑62. their identity even in the light of a dewa could not be possible. It is doubtful if at that time any dewa was alight. The father and the son had gone to sleep in the verandah in the arhat. When having gone to sleep keeping of the dewa alight carry neither any meaning nor sense. Azam Khan had not been mentioned in the first information report.

7. Mirbaz Khan, son of Kishwar deceased, (P. W. 6) filed revision against the order of discharge in the Court of the learned District Magistrate, Peshawar. The learned District Magistrate, as already indicated, set aside the order of discharge. The operative part of the order reads thus :‑

The order of discharge has caused a grave miscarriage of justice. The case requires to be probed in further. Due attention has not been paid by the lower Court to the state ments of the witnesses. The file of the case is forwarded to Mr. Muhammad Tariq Khan, C. S. P., Assistant Commissioner, for trial afresh and decision on merits.

The accused feeling aggrieved have come up on revision.

8. The question which falls for decision in this revision petition is whether on the facts and circumstances of the case "there are not sufficient grounds for committing" the accused for trial within the meaning of section 209 of the Cr. P. C. S. Masoom Shah, the learned counsel for the petitioners com plained that for proper decision of the question whether there were "sufficient grounds for committing", the inquiry Court is under statutory obligation to sift the evidence, and in case he finds the evidence in a particular case to be unreliable he is competent to discharge the accused, and that in the instant case the inquiry Court bad very rightly expressed doubts about the identity of the assailants, and as such the order of discharge was well founded.

9. Mr. Sher Bahadur Khan, A. A.‑G., on the other hand, argued that the inquiry Court was competent to sift the evidence only for the purposes of finding whether there were sufficient grounds for committing and not to embark into full address trial in regard to the accusation of the accused, and that the function to try the accused in such cases exclusively belonged to the Court of Session. In other words, he argued that whenever there was a prima facie case the inquiry Court was bound to commit the accused for trial and the question of weighing the prosecution evidence with regard to improbabilities and apparent discre pancies was the function of the Sessions Court who had jurisdic tion to try the case.

10. There is considerable case law on the true interpretation of the term "sufficient grounds for committing", but I would content myself by referring to the following two decisions of the Supreme Courts of Pakistan and India :‑

(1) Hari Ballav Shaha Roy v. Gopi Ballav Shaha and Government of East Pakistan P L D 1959 S C (Pak.) 347.

(2) Ramgopul Ganpatrai Ruia and another v. State of Bombay P L D 1958 S C (Ind.) 293.

In the first authority their Lordships were called upon to decide the true interpretation of the term "sufficient grounds for committing" the accused within the meaning of sections 209 and 210. Shahabuddin, J., delivering the judgment for the Court, after review of the case law on the point, at page 353 in a lucid judgment, tersely summed up the position, if I say so with respect, as follows: ‑

.that a Magistrate holding the preliminary enquiry has power to sift and weigh evidence only for the purpose of determining whether or not it is a fit case for committal and not for deciding about the guilt of the accused, that no hard and fast rules can be laid down regarding the distinction to be made between the duty of a committing Magistrate and that of the Sessions Court, but the test indicated above is a safe guide viz., that if there is on the evidence even a possibility of conviction the accused should be committed for trial though the Magistrate thinks that a conviction is not probable or the matter is not free from doubt, but that he should discharge the accused if on the evidence he comes to the conclusion that no Court or jury could reasonably be expected to convict the accused.

In the second authority Sinha, J., delivering the judgment for the Court, at page 307, summed up the discussion on the subject, thus .‑

In each case, therefore, the Magistrate holding the preliminary inquiry, has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit, and unless he is so satisfied, he is not to commit.

11. It follows from the above authorities that while the inquiry Court is competent to sift the evidence for the purposes of deciding whether there are "sufficient grounds for committing," it would be clearly out stepping its jurisdiction and encroach on the function of the full‑dress Sessions Court if it were to weigh the testimony with regard to the improbabilities and apparent discrepancies which is more properly a function of the Court having jurisdiction to try the case i.e., the Sessions Court. To put it differently, if there is a prima facie evidence, which if believed, would sustain a conviction, the inquiry Court is bound to commit the accused for trial and leave the question of improbabilities in regard to the identity of the accused to the trial Court. Judging the instant case in the light of the test laid down by the Supreme Courts of Pakistan and India, and in particular the weighty observations of Shahabuddin, J., that "if there is on the evidence even a possibility of conviction the accused should be committed for trial" the order of discharge cannot be sustained. For one thing, there is the eye‑witness account of Mirbaz Khan (P. W. 6), who himself was injured, and there is also the evidence of Azam Khan (P. W. 1), who purported to have seen the three accused shortly after hearing three shots. This being the situation, I think, there was a prima facie case against the accused, and as such the inquiry Court should not have usurped the function of the Sessions Court in weighing the evidence in regard to the probabilities or identity of the accused.

12. For all the foregoing reasons, the revision petition fails and is dismissed.

13. Before I part with the case I wish to point out that in the instant case the prosecution had concluded the evidence and the learned inquiry Court had also examined the accused for the purposes of enabling them to explain any circumstance appear inn the evidence against them and, therefore, the only proper order which should have been passed by the learned District Magistrate on the revision was to have set aside the order of discharge and directed the inquiry Court to frame charge against the accused and commit them for trial to the Court o Session. I, therefore, acting under section 439, Cr. P. C., modify the order and direct the inquiry Court, namely, Mr. Abdul Aziz Khan Magistrate, to frame charges against the accused and commit them to the Court of Session. Before I conclude, I do not wish to be supposed to have given any finding in regard to the crediblity of the testimony of Mirbaz Khan and Azam Khan P. Ws. and that the Sessions Judge is absolutely free to form his independent opinion in regard to the veracity of these witnesses.

14. The record of the case should be sent to Mr. Abdul Aziz Khan, Magistrate 1st Class, Nowshera.

K. B. A. Order accordingly.

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