This is a revision application under section 439 read with section 435 of the Code of Criminal Procedure brought by the complainant Ghulam Sarwar against the order of the Additional Sessions Judge, Sukkur, dated 9-8-1969 whereby he maintained the order of discharge under section 253, Cr. P. C. in the case tiled by the complainant Ghulam Sarwar against the four opponents herein who arc all police constables, namely, Hassan Askari, Muhammad Morrial, Muhammad Sachal and Dhani Bux.
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2. The facts of the prosecution case brieily arc these. Complainant Ghulam Sarwar (P. W. 1) got down from Awanti train on 17-10-1967 at Rohri Railway Station platform as he had come from Rawalpindi and he wanted to go to Sukkur. Poss Khan (P. W. 8) was also with him. At that time it was about 5 a.tn. when the train had arrived at Rohri. The complainant had only one attache case which he gave to the Cooli. This attache case contained 12 or 13 pairs of clothes and a revolver belonging to the complainant. The Cooli with this attache case went ahead of the complainant and in the meantime opponent constable Muhammad Bachal met the complainant and told him that he was wanted by the Subedar. The complainant was then taken by him to the Ice vendors compartment in the same train. In this ice compartment the other three opponents, namely, Hassan Askari, Muhammad Morrial and Dhani Bux were already sitting. Constable opponent Hassan Askari was in plain clothes who then took search of the complainant and seized Rs. 80 from his person and enquired from the complainant as to where were the smuggled goods. Complainant told Constable Hassau Askari that he had nothing except Rs.
80. In the meantime P. W. Poss Khan also reached in the compartment and he was also made to sit in the same compartment and the train moved. When the train started, it is alleged by the complainant that all the four opponents started maltreating him. They then took the com plainant to Nawabshah in the train. The train had stopped only at Khairpur only for two minutes and the next station was Nawabshah. Opponent Constable Hassan Askari made him got down from the train and took him to Police Cliowki at Nawab shah Railway Station. Hassan Askari told the complainant that he should pay only Rs, 18 as the ticket fair and he would arrange for his ticket through the ticket collector and they would be brothers and then he would take him to Rohri Station and from Rohri Station he will see that his luggage is returned to him. Opponent Hassan Askari then called the ticket collector who made the ticket of the complainant as well as P. W. Poss Khan and charged the complainant Rs. 18 and some paisas. The ticket collector gave the ticket to the complainant Ghulam Sarwar which opponent Hassan Askari kept with himself. The three other opponent constables except Hassan Askari proceeded ahead in the train and opponent Hassan Askari took the complainant and P. W. Poss Khan to Rohri by Mehran Express which was next available train front Nawabshah.
Akbar reaching Rohri Station when the complainant and P. W. Poss Khan went to Rohri Chowki opponent Constable Hassan Askari went inside the Chowki and then came back and demanded Rs. 50 for the return of the attache case of the complainant which was lying at the Chowki. The complainant gave Rs. 50 to opponent Constable Hassan Askari who passed it on to the A. S. 1. P. and his attache case was returned to him and he came back to Sukkur. The com plainant had reached Rohri by Mehran train from Nawabshah at about 1-30 p.m. and went to Sukkur at about 3 p.m. He came to his house first and then went again to Rohri Chowki and made a report there by a written application. This written application was given to the Sub-Inspector Yar Muhammad (P. W.
10) who was incharge of the Railway Out-post Rohri at about 3 p.tn. The Sub-Inspector incorporated this written application in his section 154, Cr. P. C. register without number and forwarded it to the Railway Police Station, Sukkur for further action. This First Information Report has been produced as Exit. 2 on record. On the same day i.e. 17-10-1967 S. H. O. Railway Police Station Muhammad Nawaz (P. W. 12) received the First Information Report Exh. 2 from Rohri Police Post at 8- 30 p.m. On the basis of this F. I. R. Exh. 2, he registered a case at his police station which report he has produced as Exh. 18 on record. The S. H. O. then carried out the necessary investigation and on the direction of the Superintendent of Police he sent up the case under section 342, P. P. C. before the Additional District Magistrate, Sukkur. Before, however, the challan was submitted by the S. H. O.
Muhammad Nawaz to the Additional District Magistrate, Sukkur the complainant had already lodged with the Additionul District Magistrate a direct complaint under sections 342, 364, 387, 389, 394 and 161 read with section 34, p. P. C. Both the direct complaint and the police challan were proceeded with together by the A. D. M. With the result that the learned Additional District Magistrate discharged all the four opponents after recording almost all the evidence for the prosecution. The complainant then went in revision before the Sessions Court, Sukkur which was decided by the Additional Sessions Judge, Sukkur who maintained the discharge order and hence the present revision application.
3. The four opponents herein when questioned under section 342, Cr. P. C. denied the prosecution allegations and professed innocence. They gave their own version of the incident which was given by the opponent Hassan Askari and Muhammad Morrial while the two other opponents denied every thing.
4. The opponent Hassan Askari gave the version which was as follows :-- "I am working in the Special Staff and my duty was to check the smuggling etc. from the running train. I and Sachal were on special duty. We two men were going on that train. When the train reached at Khairpur and started, the two persons, the complainant and Poss Khan came into the train from the back side. We interrogated him and the train stopped at Nawab Shah. There I informed S. T. Fakir Illahi Bux that they were without. He checked aud charged them. He told me that his luggage was left in the compartment and that is why he got into the train. He also stated that he was the man of S. H. O. Muhammad Nawaz and Noor Muhammad Turk Inspector Police. I immediately made such entry at the Rly. Out-post of Nawabshah in the daily diary."
5. Opponent Muhammad Sachal also made a similar statement as that of opponent Hassan Askari. [3] [4] [5] [6] Awami train by the four opponents herein, who maltreated him Ghulam and from Nawabshah he had come back along with P. W. Poss Sarwar Khan when opponent Hassan Askari also accompanied them Hassan back from there after making them to pay their fair from Nawab- Askari shah to Rohri Railway Station. The complainant in his --- examination-in-chief has stated that he was taken by the constable opponent Sachal to Jce Vendor's compartment in the train at 8 ' Rohri platform and in the ice compartment he found the three opponents sitting there. But he has been contradicted with his written complaint wherein he has stated that all the four opponents had met him at the platform and all of them had dragged him in the Ice Vendor's compartment.
10. P. W. Poss Khan has supported the complainant in his allegation but he gave a slightly different version from that of the complainant as he stated that when the train had started from Rohri platform the opponent Hassan Askari, Sachal, Morrial started beating. The complainant Ghulam Sarwar and he became unconscious. The complainant has not stated about his being rendered unconscious due to the beating of all the four opponents. This clearly shows that both the complainant and P. W. Poss Khan are capable of exaggerating the prosecution allegations. P. W.
Poss Khan has also said that in the whole way the opponents were demanding Nal for the return of the com plainant's goods which has not been stated by the complainant. Both the complainant and P. W. Poss Khan stand contradicted by what the Ticket Collector Nazir Ahmed (P. W. 7) has stated. P. W. Nazir Ahmed has said that from 15-10-1967 the water compartment in the train was discon tinued but the police compartment is always with every train. The date of occurrence is 17- 10-1967, therefore, it clearly shows that the version given by the complainant and P. W. Poss Khan that they were taken in the Ice compartment may perhaps be not true. This inference, therefore, throws a doubt on the entire prosecution case. Again in opposition to the allegations of the prosecution we have the version of the opponent Hassan Askari who says that the train was about to leave the Khairpur Station when two persons were found entraining and detraining behind the train in a suspicious condition from whom the enquiry was made. The train left and during the journey further inquiry was made from both the suspicious persons Ghulam Sarwar and Poss Khan who said that he had forgotten his luggage and he came to the train in search of the same and he used to work as a Pimp in the Sukkur Brothel and Poss Khan is also his co worker. Meanwhile just after the train had stopped at Nawab- shah the tickets were got checked from Faqir Ellahi Bux, Ticket Collector, Nawabshah, as they had no tickets. This allegation of the opponent Hassan Askari stands substantiated by the evidence of incharge railway post Nawabshah Muhammad Siddiq (P.
W. 4) who has stated that on 17-10-1967 at about 7-15 a.m. opponents Hassan Askari and Muhammad Sachal came to the Police Chowki and made entry No. 33 in the Roznamcha kept in the police out-post. The original Roznamcha entry was produced as Exh. 6 by this witness. This Roznamcha entry reads as under :-- "At 7-35 hrs. Hassan Askari H. C. No. 319 and Muhammad Saclial Constable No. 178 of Special Staff, Karachi, presently Rohri train No. 14/Dn. started for special patrolling duty towards Rohri by the said train. The train was about to leave theKhairpur Station when two persons were found entrainingand detraining behind the train in a suspicious condition from whom the enquiry was made. The train left. During the journey further enquiry was made from both the suspicious persons Ghulam Sarwar son of Akram Khan r/o Miani Road House No. 332, behind Khurshid Mali Sukkur and Poss Khan son of Sikander Khan caste Pathan r/o Boga Ratta House No. 505, 7 Rawal pindi, who declared that he had forgotten his luggage and he had come to there in search of the same and he used to work as a pimp in 'chakla' Sukkur and that Poss Khan son of Sikandar Khan was also his co-worker.
Meanwhile just after the train had stopped at Nawabshah the tickets were got checked from Mr. Faqir Ellahi Bux, Ticket Collector, Nawab shah. As they had not tickets Rs. 8.89 as of railway charge for without ticket from Rohri to Nawabshah was got paid from each, and receipt No. 228575/76 were given to them since the residence etc. was correct, so both of them were allowed to go. I HC/319 and Muhammad Sachal FC/178 started towards Rohri by train No. 25/LTR for special patrolling."
11. This Roznamcha entry clearly supports the version of the opponent Hassan Askari and as such makes the prosecution allegations rather doubtful. In any case it would be seen that both the inference of guilt on the prosecution evidence and that of innocence by the Roznamcha entry Exh.
6 are possible. When such the state of evidence when both the inference of guilt and innocence are possible on the evidence against an accused then the inference in favour of the accused is to be adhered to. This is the well settled law and I need not quote any authorities on it. I am, therefore, of the view that perhaps the version given by the opponent Hassan Askari might well be true that the com plainant and P. W. Poss Khan had tried to get into the train at Khairpur Railway Station from its back side and, therefore, they were held up by opponents Hassan Askari and Muhammad Morrial for being suspected to be without tickets. They were therefore, taken to Nawabshah. There they were made to be charged the ticket fair. The learned counsel for the opponents also cited the case of Abdul Rashid v. The State (1) wherein it has been held that Railway police constable finding a person scaling hedge arresting him on suspicion of being concerned in a cogniz able offence then it cannot be said that offence under section 342, P. P. C. was made out. This case-law clearly shows that opponent Hassan Askari and Muhammad Morrial cannot be held to be guilty of an offence under section 342, P. P. C. also for which they were charged by the police before the Court of the learned A. D. M., Sukkur. [7]
12. Furthermore, I am also reluctant to order trial in this case as it would amount to giving a direction to the lower Court to practically convicting the opponents of the offence with which they could be charged. I am supported in this view by a case The Crown v. Mirza Khan (1). Going still further I might also state that in the present case there is a finding of facts recorded by the two lower Courts which have held the opponents not to be guilty and in this revision petition in my opinion due to the authorities mentioned hereinafter it will not be proper for me to interfere.
13. The first authority is the case of Umer Din v. Din Gul and others (2), wherein it has been held as follows :-- "It is an accepted principle of law that a High Court will not normally interfere in revisional proceedings with a finding of fact of a lower Court. Even if the lower Court had failed to appreciate the evidence properly this would normally be no ground for revision. It must be shown that there has been some substantial error either in law or that in the appreciation of evidence of the lower Court had taken a completely perverse view."
14. The next authority is the case of Abdul Hamid v. Muhammad Feroz (3), in which it was expressed as under :-- "Since both the District Magistrate and the Sessions Judge have concurrent powers with the High Court under section 435, Criminal P. C. it should not be open to any person to attempt to use the revisional powers of the High Court as if they were appellate powers then once the matter had been decided by one of the lower revisional Courts. While there may be no legal bar to the submission of a revision petition to the High Court, even though a similar petition may have been dismissed by a lower Court, the High Court will be most reluctant to exercise its powers unless some fresh set of circum stances has arisen which were not considered by the lower revisional Court, or unless it can be shown that the decision is obviously perverse as to the facts or the law. In brief, it will be necessary for a petitioner either to approach the High Court direct, provided there are special reasons for his not approaching the Sessions Judge or the District Magistrate in the first instance ; or, if he is dissatisfied with the judgment of the lower revisional Court, he must be in a position to show that there are fresh grounds for the High Court to exercise powers of revision."
15. The next authority is the case of Muhammad Khurshid v. The State (4), in which it has been held as follows :-- "It is only rarely that the High Court while exercising its revisional jurisdiction, travels beyond the region of law or procedure, to correct errors in decision on facts, and when an
(2) PLD 1950 Bal. 31
(4) PL .D I960 Lab. 1202 occasion arises for going into the facts of the case, the High Court does not interfere as readily as it would if it were a matter of appeal, the distinction being that in dealing with a criminal appeal, the Court interferes unless it is satisfied as to the guilt of the accused, while in revision, the Court does not interfere, unless the Court is satisfied that no judicial Court should have convicted the accused on the evidence on the record."
16. The last but one authority, is the case of Muhammad Nllr All v. The State (1), wherein it has been held as follows :-- "The Courts exercising powers of revision should not ordinarily interfere with an order of discharge of the accused unless the prospect of any public advantage from the case being re-opened is found to exist."
Obviously in this case no prospect of any public advantage from the case being reopened exist, therefore, it would not be proper to order retrial by way of further enquiry.
17. The last case is Azahar Khan v. The State (2), wherein it has been decided as under :-- "In a criminal revision it is not open to a party to challenge a concurrent finding of fact arrived at by the Courts below particularly when there is some evidence to support such finding."
18. This is the opinion of Mr. Justice Hamoodur Rehman as he then was but he is now the Chief Justice of the Supreme Court of Pakistan and his view also is that the finding of fact arrived at by the Courts below particularly when there is some evidence to support such finding should not be set aside. Obviously, in the present case there is sufficient evidence to support the finding of both the Courts below as such I do not consider it expedient to interfere with these findings.
19. For the foregoing reasons I see no merit in this revision application and hence it is, accordingly, dismissed.
Revision not allowed.
(1) PLD 1961 Dacca 239 (2) PLD 1961 Dacca 484