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Criminal Reference No. 132 of 1962, decided on 20th December 1962.
, S. 215‑Insufficiency of evidence‑Not "point of law"‑No ground for High Court to quash commitment.
Harendra Lal Roy Chowdhuri v. Sm. Haridasi Debi and others A I R 1914 P C 67 ; Emperor v. Vellapa Durgaji Jadhy A I R 1929 Born. 269 ; Gansham Das v. Emperor A I R 1930 Lah. 545 (1) ; The State v. Nazar Mohmad A I R (38) 1951 Raj. 122 (J B) ; K. K. Anthrew v. The State A I R 1952 Tranv‑Cochin 158 ; Muhammad Khan and another v. Emperor A I R 1933 Lah. 39 ; Emperor v. Waroo and another A I R 1938 Sind 79 ; Hassan Din v. Emperor A I R 1931 Lah. 467 and Maroti v. Emperor 36 Cr. L J 1935 Nag. 1389 ref.
‑ Reference‑Trial Judge expressing his opinion on reference‑Trial by same Judge not desirable.
Shah Zaman Khan assisted by Rahimdil Khan for Petitioner.
S. Ghazanfar Ali Shah A. A. G. for Respondent.
Date of hearing : 4th December 1962.
‑This is a reference by Mr. Muhammad Shafique Khan learned Sessions Judge, Derajat Division, recom mending that the commitment made by S. Mutiullah Shah Magistrate Ist Class, Bannu, by his order dated 24th February 1962, under which the petitioner Bahadur Khan son of Mirza Ali Khan, resident of Katka Bazid Surani, Police Station Saddar, District Bannu, has been committed to the Court of Sessions to stand his trial under section 302 read with section 109, P. P. C. be quashed. There is also a revision by Nawab Khan son of Mumtaz Khan deceased, requesting that the reference made by the learned Sessions Judge for quashing the commit ment of Bahadur Khan be rejected, and we propose to dispose of the reference and the revision by this judgment.
2. The reference and the revision petition were referred to a Division Bench by Muhammad Daud Khan, J. on the ground that the question as to whether the order of commitment on insufficient evidence was a question of law or not. Under section 215, Cr. P. C. the High Court is empowered to quash the order of committal merely on the point of lace. The point if insufficiency in evidence is a point of law or not, has been differently decided by different High Courts and it requires further consideration.
3. The facts giving rise to this reference and the revision briefly are that Nawab Khan (P. W. 1) is the son of Mumtaz Khan deceased. On the night between 15/16th June 1961, the deceased, his son Nawab Khan (P. W. 1) and his widow Mst. Khumari Jan (P. W. 5) were asleep on separate cots in the courtyard of their house. On 16th June 1961, the deceased, Nawab Khan and Mst. Khumari Jan got up at about morning prayer time, and the, deceased left his house for the mosque for offering his prayers and soon Nawab Khan and Mst. Khumari Jan heard two shots. On coming out of his house, Nawab Khan P. W. saw Khan Gul armed with a D. B. shot‑gun and Amir Habibullah armed with S. B. shot‑gun running towards the north and the deceased was lying in a wounded condition who soon succumbed to his injuries. The occurrence was also witnessed by Rasta Baz and Bahadur Khan P. Ws. Placing the dead body of the deceased on a cot it was taken to Police Station Saddar, at a distance of four miles from the spot, where the report of Nawab Khan Exh. P. A. was recorded at 06‑30 hours, charging Amir Habibullab and Khan Gul accused 'for the murder. The motive given for the offence was that Mst. Khumari Jan (P. W. 5) is the sister of Mst. Basmari Jana, wife of Amir Habibullah. These two ladies are said to have inherited considerable landed property from their mother and Amir Habibullah wanted to marry her, but she, however, married Mumtaz Khan deceased Khan Gul was beaten by Mumtaz Khan deceased during the last elections to Basic Democracies. It may be pointed out here that Bahadur Khan petitioner was neither charged in the first information report and nor any motive was attributed to him for the offence. Subsequently, during the enquiry it was alleged that Bahadur Khan petitioner had also a motive for the offence. Mumtaz Khan deceased was the mortgagee of a‑piece of land and its equity of redemption was purchased by Bahadur Khan which was resented by the deceased. Apart from it, it is alleged that about four years before the occurrence Bahadur Khan petitioner had hired one Ghulam Sarwar for murdering Mumtaz Khan deceased.
4. The learned Sessions Judge was of the view that the evidence on the record would not sustain the charge against the petitioner, and in his opinion the absence or insufficiency of evidence in support of a charge is a question of law and recommended the case for quashing the commitment.
5. Section 215, Cr. P. C. lays down that a commitment once made under section 213 by a competent Magistrate can be quashed by the High Court only, and only on a "point of law". The learned counsel for Bahadur Khan petitioner referred us to Harendra Lal Roy Chowdhuri v. Sm. Haridasi Debi and others (A I R 1914 P C 67) where it was held that a decision that there is no evidence to support a finding of fact i3 a decision of law. Continuing, his argument, the learned counsel submitted that the absence of evidence necessary for an order of commitment is a point of law pure and simple on which a commitment order can be quashed by the High Court. There was no evidence on the record on the basis of which the petitioner could be convicted on trial, as he was neither charged in the first information report nor any motive was attributed to him. The three eye‑witnesses examined during the enquiry apart from attributing motive to the petitioner did not say that he was seen on the spot at the time of the occurrence, and, therefore, the evidence produced by the prosecution regarding the participation of the petitioner in the commission of the offence, in view of the learned counsel, was absence or insufficiency of evidence in support of the charge which was a question of law. In support of his contention, he relied upon Emperor v. Vellapa Durgaji Jadhy (A I R 1929 Bom. 269) where it was held as under :‑
High Court under section 215 would not ordinarily interfere with an order of committal unless it is satisfied from the record that there was an illegality in the order. The test in a matter of this nature is to see from the judgment of the Magistrate what his findings on the evidence are and whether those findings are capable prima facie of sustaining the charges he has framed and on which the committal to the Court of Session is made.
He further relied upon an authority reported as Gansham Das v. Emperor (A I R 1930 Lah. 545 (1)) where it was held that "where there is no evidence to support an order of commitment, the commitment must be quashed because absence of evidence is a question of law and not of fact." In The State v. Nazar Mohmad (A I R 1951 Raj. 122 (J B)) it was held to the following effect :‑
The absence of evidence necessary for an order of commit ment is a point of law pure and simple on which the commitment order can be quashed by the High Court. Hence where an order of commitment of accused who is alleged to have committed the offence of forgery under section 466, Penal Code, is based on evidence from which evidence of a necessary ingredient of dishonesty or fraud is missing, it deserves to be quashed by the High Court.
The same view was taken in another case reported in K.K. Anthrew v. The State (A I R 1952 Trinv, Cochin 158) that "when there is no evidence in the case on the basis of which the accused can be convicted on trial it is a point of law and the High Court can set aside the order of commitment".
6. The learned Additional Advocate‑General, on the other hand, contended that insufficiency of evidence is not a point of law and commitment cannot be quashed. Continuing his argument, he urged that the petitioner was charged for abetment. During the course of enquiry, evidence was led by the prosecution to show his complicity with the other two accused, and as the question of insufficiency of evidence was involved, therefore, the commitment order cannot be quashed. In support of his contention, he relied upon Muhammad Khan and another v. Emperor (A I R 1933 LA. 39) where it was observed by Jai Lal, Judge as follows :‑
It is not necessary for me in this case to express an opinion about the wisdom underlying this practice, because, in my opinion, section 215, Criminal P. C., clearly precludes this Court from quashing this commitment. It has not been shown that the commitment is opposed to law or that there was any point of law involved which must necessitate the quashing of the commitment. This Court therefore on the facts of this case is not competent to quash the commitment, ..
In another case also relied upon by the learned Additional Advocate‑General reported as Emperor v. Waroo and another (A I R 1938 Sind 79) it was held that "commitment cannot be quashed merely on the ground that upon the record there was no evidence on which the accused could reasonably have been convicted because this is a matter which should better be left to the Magistrate who is trying the case." In support of the proposition that absence or insufficiency of evidence does not render a commitment illegal, the learned Additional Advocate‑General relied upon Hassan Din v. Emperor (A I R 1931 Lah. 467) where it was held that "an order of committal can only be quashed on a point of law, and the absence or insufficiency of evidence does not render a commitment illegal justifying its being quashed'". The learned Additional Advocate -General lastly relied upon Maroti v. Emperor (36 Cr. L J 1935 Nag. 138) where it was held as under :‑‑
"In sufficiency of evidence is not a point of law and is not a ground for quashing a commitment. The prohibition in section 215, Criminal Procedure Code, is limited to points of law as, if a commitment may be quashed upon the merits, an application would in practice be made only in doubtful cases and if the decision on the merits were to be against the applicant he would enter on his trial under grave prejudice .
7 After hearing the learned counsel for the parties, going through the record and the authorities cited at the Bar, we have come to the conclusion that insufficiency of evidence is not a point of law, and, therefore, not a ground for quashing the commit ment. The legal position is quite clear and the High Court will not quash a commitment unless it is shown that the commitment was bad on a point of law. There is no material on the record to show that the commitment of the petitioner to the Court of Sessions for standing his trial under section 302/109, P. P. C. was bad on a point of law. The petitioner, no doubt, was neither charged in the first information report, and nor any motive was attributed to him, but subsequently during the enquiry a motive was attributed to him for the offence and he was said to have abetted the murder of the deceased. The evidence produced during the enquiry, in the opinion of the learned counsel for the petitioner, is insufficient evidence, but the insufficiency of evidence cannot be made a ground for quashing the commitment.
8. The result, therefore, is that the reference made by the learned Sessions Judge is rejected, and the revision petition filed by Nawab Khan succeeds.
9. Since Mr. Muhammad Shafiq Khan, Sessions Judge, Derajat, has expressed his opinion, it is desirable that this case' be heard by the Sessions Judge or one of the Additional Sessions B Judges of the Peshawar Division, as we understand they go on tour to Bannu.
K. B. A./A. H. Reference rejected.
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