1. ' The two applicants alongwith one Haji Syed Usman since dead had been sent up for trial for offences under section 307/34, P. P. C. In the Court of Assistant Commissioner and S. D. M., Liaquatabad. The F. I. R. For this offence had been filed by A. S. I. Manzoor Khan on the basis of the statement of injured Anis Ahmad that had been recorded while he was in the hospital. The offence had taken place on 18-5-73 at about 7-30 a.m. When the injured had been attacked by the two unidentified persons who had come in a car driven by applicant Haji Syed Abbas while deceased Syed Usman was also in the same cdr alongwith the two unidentified persons. It was alleged that on the instigation of deceased Syed Usman the two applicants caught hold of Anis Ahmed who was stabbed with a knife by one of the unknown assailants. On.. Medical examination the injured Anis Ahmad was found to have received one injury described as under : "Incised wound left side chest upper part/oblique x 1/2" suspect cavity deep, margin sharp cut on banyan and shirt."
2. ' This injury was kept reserved. At the trial however it was shown that the nature of this injury had been found to be simple.
3. ' The prosecution examined P. W. 1 Anis Ahmad the injured, P. W. 2 Mohammad Akram, P. W. 3 Khalil- ur-Rehman as eye-witnesses; P. W. 4 M. A. Wahab the father of the injured P. W. 5 Manzoor Hussain A. S. I. And P. W. 6 Mohammad Zaman Khan S. I. P. W. 7 Zahoor Ali S. I. And P. W. 8 lady doctor Hamida Qureshi, P. W. 9 Juman Shah, City Deputy Collector Karachi. By an order dated 9-10-74 the S. D. M.
4. Discharged the applicants under section 253, Cr. P. C. He observed "In the light of the above discussion I come to the conclusion that identity of the accused has not been established through independent witnesses and participation of the accused in the commission of the offence has not been proved. There is no sufficient evidence against the accused as such I discharge both the accused under section 253, Cr. P. C. They are on bail, their bonds stand discharged".
5. ' Mr. M. A. Wahab, the father of the injured filed an application in the Court of Session, Karachi which being Criminal Revision No, 187/74 was heard and decided by the III Additional Sessions Judge, Karachi by his order dated 30-4-76 which is now the impugned order.
6. ' According to the learned Judge the Magistrate had obviously assumed the function of the trial Court to find out the guilt of the applicants which fact was evident according to him from the section applied by him while discharging them. The Magistrate had thus trespassed into the province of Sessions Court and virtually assumed the powers of the trial Court. After considering case-law he concluded "In this view of the matter the impugned order is highly improper. The revision application is accordingly accepted. The question which however arises is as to what direction should be given to the inquiry magistrate in, this behalf, in view of the latest Law Reforms Ordinance. Section 6 of the General Clauses Act however saves these proceedings. The commitment of the respondents Nos, 2 and 3 to the Court of Session is therefore ordered under section 437, Cr. P. C. Let the record be sent to the S. D. M., Liaquatabad, Karachi who should frame the charge against the respondents 2 and 3 under section 307/34, P. P. C. And then send the same to the Court of Session"
7. ' Mr. Mohammad Hayat Junejo learned counsel for the applicants has taken me through the order of the Magistrate' wherein the evidence in the case has obviously been discussed. The main witness in the case i,e, Anis Ahmed injured appears to have left the country and even his father M.
8. A. Wahab is not in a position to give his correct address. As this witness had so left the country in the middle of the proceedings before he could be cross-examined his evidence as it stood on the record was according to the learned counsel not admissible and could not be considered against the applicants. He further contended that the evidence of the other two eye-witnesses was also of no value as witness Mohammad Akram in spite of same in his 161 statement said that he would not be able to identify any of the assailants had in fact picked out the applicants in a test identification held 53 days after the incident. The other witness Khalil-ur-Rehman however failed to identify the applicants in the test although he pointed them out in Court.
9. ' Mr. Choudhary Iftikhar appearing for the respondent No, 2 i,e, M. A. Wahab, father of the injured, has pointed out that the medical evidence before. The Magistrate was not confined to what the lax doctor Hamida Qureshi had stated, but the fact that the injured had been removed to a private hospital and also subsequently operated upon had also been brought on the record. That aspect of the case had not been considered by the S. D. M. Who obviously considered the case to be one falling under section 324 of the P. P. C. And not under section 307 of the P. P. C. And therefore exercised powers under section 253 of the Cr. P. C. I have carefully considered the order of the Magistrate as well as the order passed by the learned Additional Sessions Judge. There can be no doubt that the Magistrate has passed a very lengthy order wherein he has discussed practically all the aspects of the evidence available before him and the learned Additional Sessions Judge was not wrong in thinking that passing the discharge order the Magistrate had in fact arrogated to himself the role of the trial Court. The main question for consideration however is whether on the date on which the Magistrate passed the order could he in law have discharged the applicants or not, even if the evidence as brought before him was alleged to be one for offence under section 307, P. P. C. Which was exclusively triable by the Court of Session. As the Law Reforms Ordinance XII of 1972 came to be applicable to this part of the country only after the Sind Government notification dated 23-12-75 was issued the answer would be that the Magistrate did have the above said power under the law. He was competent therefore to act under section 209 of the Cr. P. C. And if the circumstances of the case permitted could discharge the accused under that section which read as under:- "When the evidence referred to in section 208, subsections (1) and (3), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
10. ' The scope of the powers exerciseable by a Magistrate under the above-mentioned section as described in various judicial pronouncements from time to time, though limited, still shows that it is possible where the prosecution evidence obviously fails to make out a prima facie case. In the case of Harri Ballav Shaha Roy v. Gopi Ballav Shaha and Government of West Pakistan (1) it was observed on review of case-law at page 353 :- "From the above discussion it 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."
11. ' Again in the case of Qadar Bakshah and 3 others v. State (2), while considering the powers of the Magistrate their Lordships were pleased to observe at page 699 :- "His job quite plainly is to see if a prima facie case is made out for trial. Of course he has the jurisdiction to discharge an accused person under section 209, Cr. P. C. Where the prosecution evidence fails altogether and no believable evidence, even prima facie, has been adduced by the prosecution to connect the accused with the crime of murder, as alleged against him."
12. ' Now the order of the S. D. M. Discharging the accused under section 253, Cr. P. C. If could be construed as an order under section 209, Cr. P. C. Within the scope of that section described above, then there could have been no grievance about its legality or even propriety. The learned Additional Sessions Judge seems to have been impressed more by the lengthy discussion of the evidence made by the S. D. M. In the said order rather than by substance of the same. The S. D. M.
13. While criticising the evidence of injured witness Anis Ahmad who was obviously the most important witness considered the same to be of a type which required independent corroboration even if it was not held to be inadmissible. But as contended before me and conceded by counsel for the State the evidence of this witness had to be excluded from consideration altogether. The cross- examination of this witness was partly done whereafter the case was adjourned for the same purpose. This witness had not turned up from that point of time and even his father respondent No, 2 was not able to give his proper address. In those circumstances the applicants were denied the opportunity of cross-examining this important C. Witness. As held in Baliram Tikaram Marathe and others v. Emperor (3) where no opportunity of cross-examining has been given, the testimony would be inadmissible. This is not a case of witness dying or being taken as seriously ill but is the case of a witness who was under cross- D examination and was expected to turn up on the next date of hearing for the same purpose and who had been kept back from the accused in
(1) PLD 1959 SC (Pak.) 347 (2) PLD 1971 SC 694
(3) AIR 1945 Nag. 1 the case. His was the best evidence in the case as he was alleged to have been injured and further according to the learned counsel for the respondent No, 2 had continued to have medical treatment after his discharging from the Government hospital. The only other witnesses who could support the prosecution were those two who had come up at the time of incident. Their evidence however by all cannons of law is of no substantial value as they were put to identification test after a lapse of 53 days from the date of the incident. Even then one of them had failed to pick out the applicants and the other though picked them out had made a categorical statement earlier about his incapicity to do so. In this view of the evidence on record the conclusion of the Magistrate was not incorrect that no useful purpose would be served in holding a trial. The learned counsel for the State has also conceded to this position. In his submission though the Magistrate had transgressed his limits in writing an elaboratel discussed order and also impliedly in trying the case as under section 324, P. P. C. And therefore passing an order . Under section 253, Cr. P. C. But the learned Additional Sessions Judge should have seen through the value of the evidence and the substance of the order and avoided to order a trial which in the circumstances of the case amounted to flogging dead horse.
14. ' In view of what is stated ,above, I feel this to be a fit case which calls for interference. The error of the Magistrate lies in not apply in the proper section to discharge the applicants and it is possible that if h had done so the learned Additional Sessions Judge would have looked at the same from altogether a different angle. The order of the learned Additional Sessions Judge is therefore set aside as a result of which the applicants stand discharged. This application is allowed.