This is a Revision application under section 09, Cr. P. C. Wherein the judgment, dated 6th May, 1975 of the learned VIth Additional Sessions Judge, Karachi has been impugned.
2. The applicant had filed a direct complaint on or about 6th October, 1973, under section 406/468, read with section 34, P. P. C. Against the respondents 2, 3 and 4, in the Court of the learned Additional City Magistrate, Court No. XXII Karachi, who had discharged the respon--dents 2, 3 and 4, under section 253, Cr. P. C. By the order, dated 23rd November, 1.974. The applicant had preferred a revision application in the Court of Sessions at Karachi, which was dismissed by the impugned order. This is the second Revision Application on the same question of law and facts.
3. The facts of the case, briefly, are that the applicant claims to be the Chairman of Pakistan Hindu Panchaiat (Sinn at Karachi). He is also a religious and social worker. There is a public Trust of religious and charitable character, known as "Wadho Akhara Trust", having its office at "Ebrahimjee Hakeemjee Building, Watercourse Road", near Light House Cinema, Karachi. This Trust owns large immovable properties comprising of several buildings situated in Market Quarters, Napier Road, Risala Road and Lawrence Quarters, Karachi, as well as, in District Thatta, Mirpur Bathoro, Taluka Badin and other places. Respondent No. 2 was the Managing trustee and respondent No. 3 was the trustee ; whereas respondent No. 4 was the Rent Collector.
4. In the direct complaint, it was alleged that from the said Trust properties, huge amounts were utilized under the Trust scheme, and the respondents 2, 3 and 4 had misappropriated large amount of the Trust Money. It was also alleged that the respondent No. 3 had filed a Civil Suit No. 2420/71, for Declaration and Permanent injunction in the Court of First Civil Judge, First Class, Karachi, against the respondent No. 2 and the Trustees. In the Civil Suit, it was contended that the respondents No. 2 and others had connived with one employee of the Trust and bad decamped with Rs. 70,000. They were also alleged to have committed breach of trust, in respect of other moneys. The suit was, however, with--drawn, and the respondent No. 3 was made a Trustee. It was also alleged that the rents received from the Trust property were shown less and the money, so collected, was misappropriated.
5. Till 23rd November, 1974 no evidence was recorded in the case. On behalf of the respondents 2, 3 and 4, an application was filed in the trial Court, for their discharge on the ground that the respondents 2 and 3 were appointed as Trustees on 30th September. 1965, by the Additional Sessions Judge Karachi, in suit No. 10/65 copies whereof, are marked as Annexure 'A'.
6. It was further contended in the trial Court that the applicant had no locus standi to file a direct complaint, without the permission of the Additional Sessions Judges Karachi or the Advocate- General Sind. It had been pointed out that as per the terms of the Decree (Annexure `A'), the respondents had regularly filed the yearly accounts, with the Registrar of' the Trusts upto 1969, and each item of the money received by them was properly accounted for, in terms of the decree. It was therefore, submitted in lower Court that no criminal offences, under 'section 406/468/34 were made out. It was finally submitted that the applicant was, neither a trustee, nor had entrusted any of the trust properties, to the respondents. The applicant was also not the owner of the property. It was, therefore, contended that since there was no evidence of criminal breach of trust or forgery, or cheating, the respondents were entitled to be discharged, as the charge was groundless, and there was no possibility of the respondents being convicted.
7. On perusal of the record and after hearing the parties, the learned Magistrate discharged the respondents by the order, dated 23rd November, 1974. The applicant went to Revision against the order of discharge, in the Court of Sessions, Karachi. When the matter came up fur hearing before the learned Vlth Additional Sessions Judge, Karachi, he had also beard the respective parties and found no merit in the Revision Application and dismissed it, by the order, dated 6th May, 1975.
8. I have heard Mr. Asad Ali Bilgrami for the applicant, Mr. Khalil Qureshi for the State and Syed Abbas Zia for respondents Nos. 2 to 4.
9. The learned counsel Mr. Asad Ali Bilgrami, has led emphasis on the statements recorded during P. E. Under sections 200 and 202, Cr. P. C. On the strength of which the Magistrate had taken the cognizance of the offence under section 406/468, P. P. C. Both these offences were triable by the Court of First Class Magistrate. An argument is advanced that originally, an application, dated 8th January, 1974, was moved for the discharge of the respondents, under section 209, whereas.
Subsequently, the order of discharge was passed by the learned Magistrate under section 252 (2), Cr. P. C. Holding that the charge against the respondents was groundless. It is, therefore, argued that the order of discharge was bad in law, on the ground, that after holding P. E., when the offences were prima facie indicated, and after being satisfied, the Court had reached the conclusion for taking cognizance of the offence. Therefore, it could not revise its own order, against taking of cognizance of the offence. The only way open to the respondents, it is argued, was to approach, in revision, the Court of Sessions. Reliance was placed by the learned counsel on the case of Tariq Mahmood reported in PLD 1962 Lah. 839. It was, therefore, submitted that the order in revision passed by the learned Additional Sessions Judge was wrong, as he had given the finding, which were beyond the record. The facts of Tariq Mahmood case were different. However, it was observed in that judgment that where a complaint, prima facie, discloses an offence, a Magistrate cannot hold the charge to be groundless, unless, he knows what sort of evidence is going to be adduced to prove it, and he cannot, for the matter of that, without examining any witness at all, and then without knowing, what the other witnesses are going to say, hold that charge is groundless. He can only judicially come to such a conclusion, when he had at least ascertained from the complainant what is the nature of the evidence that the other witnesses are going to give.
10. In the instant case, the position is different: 1n the complaint the case of the applicant was that respondents 2 to 4 had embezzled large sums of money belonging to the Trust. No specific and direct oral or documentary evidence was brought on the record to show that the money belonging to the Trust was embezzled by the respondents. In any case, the respondents had moved an application under section 202. Cr. P. C. Probably thinking that they were committal proceedings and the case was triable by the Court of Sessions. Mentioning a different section of law, would hardly make any difference to the merits of the case. Since the respondent No. 2 and Respondent No. 3 were appointed on 30th September, 1965, the Trustees, by the learned Additional District Judge, Karachi, in suits Nos. 10/75 and 11/75; it is contended on behalf of the respondents that the applicant was not competent to file a private Com--plaint, without permission of the District Court or the Advocate-General Sind. It is further the case of the respondents that the Trust properties were managed in terms of the Decree of the Court (Annexure A) and they were filing yearly statement of accounts with the Registrar of the Trust, uptill, 1960. There was therefore, no entrustment of the properties, made by the applicant to the respondents, who had no locus standi, as he was neither the owner, nor legally in possession of the Trust properties. No case under section 406, P. P. G. Was at all made out against the respondents. The other case cited by Mr. Bilgrami is of Khalil Muhammad Rafiq reported in PLD 1967 . Lab. 833, which is not applicable to the present case, as it refers only to the alteration of judgment. The next case cited is of Saeed-ud-Din Qureshi reported in PLD 1963 Kar. 54 which has also no bearing on the facts of the instant case.
11. On the other hand, Syed Abbas Zia appearing for the respondents has submitted that the perusal of the complaint, as well as statements recorded during P. E. Under sections 200 and 202, Cr. P. C. Cannot make out a case, as alleged, and the altered alleged charge was groundless. He therefore, submitted that when the summons were issued to the respon--dents, they appeared and placed the relevant documentary material before the Court which was supressed by the applicant. The learned counsel has also placed reliance on the Decree (Annexure `A') as well as Charitable and Religious Trusts Act, XIV. The learned counsel has argued that when the learned Magistrate had reached the conclusion and was satisfied that the charge was groundless, he was competent, to discharge the respondents under section 243 (2). He has also referred to the Religious Endowments Act XXII of 1963 and Charitable Endowments Act, 1960.
12. I have also heard Mr. Khalil Qureshi on behalf of the State, who has opposed the application and submitted that no criminal offence is indicated against the respondents and the orders of the two Courts below were based on law and facts and were legal and proper. He has submitted that there is no case of entrustment of the amounts to the respondents, which were alleged to have been misappropriated by the respondents. By referring to the Decree (Annexure `A') he has argued that the acts of the respondents were in consonance with the law and the terms of the Decree.
13. The revisional jurisdiction in criminal cases is very strictly confined. The revisional power was adequately exercised by the Court of Sessions and such a revisional power, could not repeatedly, be exercised in Revision Applications, on the same facts and law by the High Court. The learned Additional Sessions Judge and the trial Magistrate had considered the facts and law, which are being one again agitated before this Court.
14. The order of the learned Additional Sessions Judge was proper wherein it was observed that :- "the question now arises for consideration is whether, in view of the fact that the entrustment is neither alleged, nor prima facie proved, the charge can be held to be groundless or not ?"
In my view, since the essential ingredients of the offence of breach of trust are wanting in the present case, the charge is groundless and the learned Magistrate was justified in discharging the accused. Section 209, Cr. P. C. Empowers the learned Magistrate to discharge the accused at any stage of the case, if for reason to be recorded, the Magistrate considers the charge to be groundless. Where Magistrate after sifting and weighing the evidence comes to the conclusion that there is no prima facie case against the accused, he may discharge the accused. This view is held in 1969 Criminal Law Journal page 387. The test to decide, whether the accused should be discharged or not is not whether conviction is probable : but whether, it is possible, and if upon any reasonable view of offence, a conviction is possible, then the Magistrate must commit the accused and is not empowered to discharge. It is only where, on the evidence on record, no other view is possible "except the one in favour of the accused, the Magistrate is entitled to discharge. Applying this test to the petitioner's case, I find that since essential ingredients of the offence, under section 406 are missing, conviction of the accused upon the allegation in the complaint and the evidence produced by the complainant is highly improbable.
Seen in this light, the charge against the accused can reasonably be said to be groundless and therefore, the learned Magistrate was justified in discharging the accused. This Court can recommend quashment of the discharge order, only if this Court is satisfied, that the reasons for the discharge are not sound and the finding of the learned Magistrate is perverse or foolish.
Another important consideration which should be borne in mind is whether, it will be in the interest of justice to set aside the order of discharge, keeping in view the gravity of the offence and the time, which might have elapsed since the alleged commission of offence. This view is held in PLD 1963 Kar. 54, PLD 1960 Pesh. 685. Applying this test to, f the present case, I find that the order of discharge is neither perverse nor foolish, nor it is based on unsound reasons".
15. Under the circumstances, I find no merit in this application, which is accordingly dismissed.