This revision petition is directed against the order of the learned Sessions Judge, Quetta, dated the 17th of October 1968, by which the learned Judge has set aside the order dated the 31st of July 1968 made by the Committing Magistrate discharging Abdul Ghafoor Khan Durrani petitioner under section 209, Cr. P. C. In a case under section 302/34, P. P. C. The learned Sessions Judge has further, in exercise of his powers under section 437, Cr. P. C. Directed that petitioner Abdul Ghafoor Khan Durrani be committed for trial to his Court. The petitioner has however been allowed to remain on bail on furnishing personsal recog--nizance bond for Rs. 10,000 with one surety in the like amount.
2. The facts, necessary for the disposal of this revision, briefly stated, are that the petitioner was challaned for an offence under section 302/34, P. P. C. With Jumma Khan, Muhammad Qasim and Abdul Qadir on the 20th of May 1967 within the jurisdiction of Qaidabad Police Station, Quetta, for the murder of Abdul Rashid son of Abdul Hamid complainant. The inquiry Magistrate, after examining all the prosecution witnesses has committed Jumma Khan, Muhammad Qasim and Abdul Qadir to the Court of Sessions for trial under sec--petition 302/34, P. P. C. While the petitioner Abdul Ghafoor Khan Durrani, was discharged. No appeal or revision was filed against the order of discharge made by the Magistrate on behalf of the State. On a revision made under section 435/437, Cr. P. C. By Abdul Hamid complainant, father of the deceased, the learned Sessions Judge has set aside the order of discharge on the ground that when the Magistrate had found that there was evidence on record that the petitioner had uttered some words to the effect "catch hold of him and kill him" he should not have discharged the petitioner by saying that there was no motive for him to utter those words. The learned Sessions Judge has further observed that the duty of the committing Magistrate was to see that a prima facie case has come on record and thereafter he should not have given a finding on facts. There--fore, the order of discharge made by the Magistrate was not only improper but also perverse. In support of his conclusion the learned Sessions Judge has relied on a decision of the Supreme Court in Mazharul Haq v. Ishaque Sardar (PLD 1962 SC 480).
3. Qazi Muhammad Isa, learned counsel for the petitioner has read before me the two orders as well as the relevant portion of the F. I. R. Attributing the part played by the petitioner in the commission of the crime. He has also urged that out of the prosecution witnesses who had appeared to support the incident petitioner's name was not mentioned by those witnesses who were independent and the rest of the witnesses being the relation of the deceased as well as of the complainant it was neither possible nor probable that a convic--petition can be ordered against the petitioner, therefore, it was necessary to save the petitioner from unnecessary torture and expenses of standing a trial before the Court of Sessions.
4. There may be some force in the argument of the learned counsel for the petitioner and it is possible that after going through the evidence of the prosecution and that of the state--ment of the complainant in the F. I. R. Would have come to a different conclusion on the basis of the authority cited by the learned counsel for the petitioner but in view of the authority relied upon by the learned Sessions Judge i.e. Mazharul Haq's case what I am called upon to do in these proceedings is to find out whether the order of discharge made by the learned Magistrate was in due discharge of the duties under section 209, Cr. P. C. Or he has overstepped his authority.
5. In order to appreciate the power and authority of the Magistrate as an Inquiry Magistrate it is necessary for me to point out that their Lordships of the Supreme Court in Mazhar--ul-Haq's case have them selves considered the view expressed by them in Hari Ballav Shaha Roy's case and it will be useful to reproduce their observations from page 485 in order to find out the limits of the jurisdiction of the Magistrate under sec--petition 209, Cr. P. C.
"Firstly, it is essential for the proper maintenance of the criminal jurisdiction that a serious crime of this nature should be brought to trial before a competent Court and that questions of fact arising therein should not be allowed to be decided by a Court of enquiry whose only function is to satisfy itself that there is a prima facie case against the accused persons, and to set out the case so found in a committing order, supported by a formal charge, upon which the trial can proceed.
Secondly, we should indicate the fundamental flaws which have led to this unfortunate refusal by the Courts to per--form their duty in this case. The proceedings in the case hitherto appear to have been inspired solely by a desire to assert the authority of the Enquiry Magistrate to examine and appreciate the evidence led before him. That authority has the support of the decision of this Court in the case cited above (PLD 1959 SC (Pak.) 347). But neither that judgment nor any other judgment of any Court possibly avail to give jurisdiction to an Enquiry Magistrate to try an offence of murder. In other words, if there be questions of fact or of law upon which the prosecution and the defence are at issue in such a case, the decision upon such issues can only be reached by the Sessions Court."
6. The learned Sessions Judge in his order under revision has quoted the following observations in the order of discharge to hold it as bad and perverse :- "As regards this accused person, it is on record that he had uttered the words, "Catch hold of and kill him", but there is no motive for his uttering these words."
Besides the above, I find that the learned Magistrate has further proceeded to examine the evidence brought on the record in order to find out a case for discharge of the accused. The further conclusions of the Magistrate, summarized in the relevant para. Are as follows:--- "It is on record that the plot of land on which the Jhugis and rooms had been built and the question about vacation of that plot had arisen did not belong to him. It is on record that no rent deed had been executed and no receipts for amounts of rent of the plot were ever given by Abdul Ghafoor Durrani. It is on record that Abdul Ghafoor Durrani had no previous enmity with the murdered man or his relatives. It is also on record that during the time the incident occurred Abdul Ghafoor Durrani did not abuse or said anything bad and that even after the incident he remained standing there but nothing bad was said. It is also on record that Abdul Ghafoor Durrani is the Chairman of the Union Committee and that people go to him to get their disputes settled. These statements have been made by one or the other prosecution witnesses. I have, therefore, no alternative but to discharge him. I, therefore, discharge Abdul Ghafoor Durrani son of Abdul Wadood Khan of Shaldara, Quetta under section 209, Cr. P. C."
7. From the above narration it is clear that the learned Magistrate has taken into consideration the disputed questions which were at issue between the parties about the possession of the plot of land, its ownership with the petitioner, and tenancy with the complainant. The learned Magistrate has also considered the impact of the words attributed to the petitioner mentioned in the F. I. R. And has also considered his conduct at the time of the commission of the crime after having said the above words. The learned Magistrate also seems to have been influenced by the position of the petitioner as a Chairman of the Union Committee.
8. These circumstances do clearly indicate that the Magistrate had taken upon himself to decide about all the points in issue which had been raised before him regarding the ownership of the plot of land in dispute and his order tends to give benefit of doubt to the petitioner although it is not said so by him in so many words. It was possible that these considerations might have prevailed according to the earlier decision of the Supreme Court and the order of dis--charge might have been allowed to stand but from the observations of their Lordships of the Supreme Court in Mazharul Haq's case at page 486 it is clear that while examining a prima facie case under section 209, Cr. P. C. The Magistrate cannot take into consideration various pieces A of evidence about those matters on which the parties are a issue and discharge the accused. In this connection I would like to refer to the relevant observations in para. 2 at page 486 which read as under "Now the concept of a `reasonable doubt' operating in favour of an accused person only begins to apply at a stage when the full evidence on both sides in regard to a point in issue has been placed on record, and such evidence being considered as a whole, the Court is still left in a state of doubt as to what the answer should be, such doubt being a reasonable doubt'. To say so much is sufficient by itself for excluding altogether the possibility of a committing Magistrate ever being a Judge of `reasonable doubt', for the faculty of deciding upon any point in issue has not been conferred upon him. The existence of two opposing versions on any point of fact arising in such an enquiry, or of opposing view-points on any question of law, is by itself a sufficient ground for the Magistrate to commit the case for decision to a competent Court."
9. From the above observations it is clear that an Inquiry Magistrate, in exercise of his power under sec--petition 209, Cr. P. C. Cannot form an opinion about the guilt of innocence of an accused person if there are two possible views which can be taken about the statements of certain witnesses or the extent to which an accused has played a part in the commission of the crime. The Magistrate is bound to commit the accused and cannot give his own point of view as this is only within the competence of the trial Court.
10. Taking into consideration the prosecution evidence it was necessary for the learned Magistrate to have also taken into consideration the statement of the petitioner under sec--petition 342, Cr. P.
C. The petitioner in his statement has plainly denied all the allegations made against him by the prosecution. He has disowned the ownership of the plot of land. He has stated that he has been falsely implicated by the complainant at the instance of one Qazi Ghulam Mohiuddin who is inimically disposed towards the petitioner. The petitioner has-- also denied his presence on the spot and has also stated that Jumma and Qadir were not present at the time of occurrence. In these circumstances it was the duty of the Magistrate to commit the case to the Court of Sessions.
I am supported in this view by the observations of their Lordships of the Supreme Court in Mazharul Haq's case at page 486 (d) "where the accused persons do not raise any such contention at the committing stage, the duty to commit is of course, plain, since the offence of which a prima facie case is thus made out is beyond the competence of the Enquiring Magistrate to decide". The only exception which has been clearly laid down by the Supreme 8 Court in the above case is that when the prosecution evidence fails altogether and quite plainly to make out a prima facie case it is there of course where the Magistrate would make an order of discharge under section 209, Cr. P. C.
11. From the above discussion it is clear that by discus--sing the various pieces of evidence the learned Magistrate has given his own finding about the innocence of the petitioner which he was not competent to do. The matter, therefore, becomes fit for trial by a competent Court who will consider the disputed questions and weigh the possibility of the commis--sion of the offence by the petitioner and will also determine as to what importance has to be attached to the words attributed to him in the F. I. R. And to what extent the encouragement and support these words do lend to the other participants in the crime.
12. As a result of the above discussion I am clearly of the view that that the learned Sessions Judge was perfectly right to direct that .The petitioner be committed to stand his trial along with others under section 302/34, P. P. C. And I do not think that his order is either illegal or improper to warrant an interference in exercise of revisional jurisdiction of this Court under section 439, Cr. P. C.
13. It may be pointed out that the learned counsel appearing on behalf of the State has not supported the order of commitment made by the learned Sessions Judge but that concession will not render the order of the learned Sessions Judge as illegal or improper. It is, therefore, for the learned Sessions Judge to consider and examine all points raised by the petitioner in his defence and to give his determination on the evidence of the parties in accordance with law.
K. B. A.