This is an application for the cancellation of bail granted to three persons, namely, Muhammad Ikram, Umar Draz and Qamar Jan. There was an F. I. R. lodged by the applicant Hafizur Rehman as a result of which two of these persons, namely, Ikram and Qamar Jan were challaned while one Saleem was shown as an absconder and Umar Draz was not challaned at all. Bail was originally refused by the learned. Magistrate on the ground that the offence involved was one under section 307, P. P. C. punishable with transportation for life. Subsequently, however, bail was granted to Qamar Jan and to Ikram by the then Sessions Judge Mr. Hidayat Hussain and his successor Mr. Barak Zai respectively because no evidence had been led in the case for some time and on a consideration of the medical certificate the learned Judges came to the view that a case of attempt to commit murder may or may not be made out.
2. Thereafter applicant filed a private complaint in which process was issued under section 307, P.
P. C. and bailable warrants were issued. Presumably non-bailable warrants were not issued because the Court of Sessions had in the meantime granted bail already. An application was then made to the Sessions Court for cancellation of bail and upon its refusal a similar prayer has now been made in this Court.
3. Learned counsel who appeared for the applicant argued in the main that the offences were non- bailable and that the version given in the F. I. R. was a false one. The argument was that the F. I. R. did not reflect a voluntary and true statement by the applicant as his signature had been taken on a blank piece of paper and the investigation manoeuvred in favour of the accused persons.
Obviously these are allegations into which 1 cannot go at this stage. It is quite impossible for me to say that the facts as revealed by the police report are false or the investigation dishonest without considering the entire evidence in the case which has not been recorded. Of course before a trial Magistrate or a trial Judge when the entire evidence has been taken it wiU be open to the applicant to pursuade the Court that the version now given by him is the truth and it will be possible for such a tribunal to come to a proper conclusion.
4.Learned counsel agrees that the grant of bail under section. 307, P. P. C. was perfectly proper but he claims that now the process is issued under section 459. Apart from the fact that the record docs not support this and the process issued on the private complaint is under section 307, only, I do not see how this can make a material difference. Both the offences arc punishable for transportation for life and the learned counsel for the applicant concedes that the prior order of bail was perfectly correct. If it was correct then nothing has since happened which would justify the cancellation of bail, and the learned Judge's refusal so to cancel the bail, based as it was on this ground, is to my mind, perfectly proper.
5. It was then said that the accused persons had taken improper advantage of their being at liberty and have threatened and coerced the prosecution witnesses and in proof of this it was stated that one of the witnesses, namely, Abdul Jabbar, tiled a report with the police alleging that he had been beaten up by accused Ikram. The papers, however, reveal that this allegation was not supported by one Rafiq who was examined by the police in that connection. I would not accept the police Ending as in any manner conclusive either for or against the applicant but curiously enough this allegation does not find any place in the petition itself now before me and, there, the allegation in regard to the behaviour of the accused persons is entirely different. What is alleged is 'threats' and not a beating and that too by all the three accused persons and not only Ikram.
6. I aiu not satisfied, therefore, that any thing has happened since the grant of bail earlier which was not challenged in this Court to justify the cancellation of bail and 1 accordingly dismiss this application.
Application dismissed.
19/2 P Cr. L J 000 [Lahore] Before Muhammad Afzal Cheema, J The STATE--Petitioner versus RUSHAN ltc.--Respondents Criminal Revision No. 1048 of 1971, decided on 14th October 1971.
(a) Criminal Procedure Code (V of 1898), S. 215--Commit- ment proceedings - Can be quashed only on a question of law and law alone--Cases under S. 307/I48II49, P. P. C. and Arms Ordinance partly heard by a S. 30 Magistrate but on subsequent transfer to file of 1st Class Magistrate, committed to Session Court--No fault, held, could be found with order of commitment on ground that case could be disposed of by S. 30 Magistrate himself--Order of commitment, however, passed merely in a pur- functory manner and in compliance of misconceived direction of District Magistrate without independent application of Magistrate's own mind--Order, held, could not be allowed to stand and quashed. [p. b02]A et seq Dana Mia v. Mumtazul Karim and others AIR 1941 Cal. 271; Emperor v. YeUappa AIR 1929 Bom. 261 and Emperor v. Mudan Lai AIR 1936 Peslt. 1939 rel.
(b) Criminal Procedure Code (V of 1898), S. 192--Transfer of criminal cases--District Magistrate, while dealing with re-distrllJutioti of criminal cases--Could not transfer case to Magistrate not competent to deal with case. [p. 603]/J K. Mustafa Bukhati for A.-G. assisted by A. S. Ilashmi for the State.
Raja Muhammad Ayub for Respondent.
C/t. Eeroze-ud-din for the Complainant.
Date of hearing : 14th October 1971.
These four cases, Cr. Revisions Nos. 1048 to 1051 of 19/1 are connected matters having been registered as notice cases and arc being disposed of by a single order.
2. The relevant facts briefly are that on the 4th of April 1967, a case under sections 148 and 307/149, P. P. C. was registered at Police Station Kathala Shaikhan, District Gujrat, at the instance of one Chawai complainant against eight persons namely, Akbar, Roshan, Salehon, Hayat, Akram, Wali, Ghulam Rasool and Lala. The trial commenced in the Court of Sub- Divisional Magistrate, Mandi Bahauddin who was invested with power under section 30, Cr. P. C. and as such competent to try the case. After he had recorded statements of seven P. Ws. the prosecution closed its case giving up Muhammad Nawaz H. C. and Mr. lnaamul Haq Tehsildar as unnecessary. The last witness was examined on the 24th of April 1969, when the Sub-Divisional Magistrate appears to have fallen ill as indicated by a perusal of the order sheet, with the result that no proceedings were taken on 28-5- 69, 23-6:69 and 28-7-69 the three subsequent dates to which the case was adjourned in succession. The case was then adjourned to 20-8-1969 when the learned Sub-Divisional Magistrate made the following order :-- "Accused present on bail. Refer this case also to Resident Magistrate for disposal alongwith the main case. Accused directed to appear in that Court on 1-9-1969."
On receipt of the case, the Resident Magistrate, Mandi Bahauddin who was only a First Class Magistrate not invested with powers under section 30, Cr. P. C. proceeded with the examination of the accused under section 342, Cr. P. C. and framed charge presumably under an assumed direction of the District Magistrate as indicated by his order dated 18-9-1969 reproduced below :-- "The case was registered on 4-4-1967 by Police Kathala Shaikhan, Gujrat. The challan was put up in the Court of S. D. M., Mandi Bahauddin on 27-6-67. The statements of the P. Ws. had already been recorded by the S. D. M. The case came to my file only on 1-9-1969. After recording the statements of the accused they were charged accordingly and committed to the Court of Sessions as ordered by the District Magistrate."
A separate commitment order of even date is also on the record, as a result of which all the 8 accused were committed to stand trial in the Court of Sessions.
3. It appears that in the course of its investigation, the police recovered a '303 clutch action rifle from Qadar accused and two spears from Roshan and Salehon, which resulted in the initiation of separate proceedings against all the three of them under the Arms Ordinance. In these three cases too the prosecution evidence was recorded by the learned Sub-Divisional Magistrate which were also transferred to the file of the Resident Magistrate, Mandi Bahauddin, simultaneously with the main case under section 307, P. P. C. in the circumstances explained above.
4. Something interesting appears to have transpired at this stage. Vide D. O. No. 11/COC dated 4th March 1971 the learned Sessions Judge, Gujrat forwarded to this Court four judicial files of these cases alongwith their commitment orders passed by Mr. Akhtar Ali Monga, Resident Magistrate, Mandi Bahauddin. The learned Sessions Judge stated therein, that these files were apparently received by him from the High Court with endorsement No. 19814-Criminal, dated 3rd March 1971 purporting to have been signed by one Ahmad Hassan as Superintendent, Criminal Branch under a registered parcel of even date. In view of the rather unusual procedure of commitment adopted in these cases despite the competency of Section 30 Magistrate to try them, coupled with some indications of forgery on the parcel the learned Sessions Judge sought further directions of this Court. He expressed his view that presumably the records not having been forwarded to the Sessions Judge in time, this device of forwarding the same from the High Court under a forged cover, was resorted to with a view to explain away the inordinate delay in their trans mission. This led to a separate inquiry by the Registrar of this Court who also examined Mr. Akhtar Ali Monga, the then Resident Magistrate, Mandi Bahauddin, since transferred to Lahore. It appears that the District Magistrate, Gujrat has also conducted a separate inquiry against the Reader and the Ahlmad of that Court but we are not concerned with that aspect of the matter in so far as the disposal of these cases is concerned.
5. In view of the fact that the Sessions Judges are already over burdened resulting in the delay in the disposal of murder cases which are more important in nature, it was considered appropriate to register these four cases as references with a view to dispose them of.
6. The point that falls for consideration however, is whether the four commitment orders passed in these cases one in the main case under section 148, 307/149, P. P. C. and the remaining three under the Arms Ordinance can be quashed by this Court with a view to remand the cases for final decision by Section 30 [11]' Magistrate, thus relieving the Sessions Judge of this unnecessary burden. An order of commitment can be quashed under section 215, Cr. P. C. only on a question of law and law alone. Obviously, no fault could be found with the legality of the order of commitment in the instant cases. Mere considerations of con venience or administrative facility would be hardly relevant and much less adequate justifying the quashment of an order otherwise found valid. The proposition is not devoid of authorities.
7. Learned counsel has referred me in this regard to Dana Mia v. Mumtazul Karim and others (l), Emperor v. Yellappa (2) and Emperor v.Madan Lal (3) which are all D. B, judgments directly in point.
Accordingly no fault could be found with the orders of commitment on the ground that they were not passed by a Section 30 Magistrate who was himself competent to dispose of the cases.
8. There is however, another aspect of the matter. It appears that the learned Sub-Divisional Magistrate who was seized of the cases in the first instance and had recorded the entire prosecu - tion evidence transferred them to the file of the Resident Magistrate, Mandi Bahauddin presumably on a so-called direction of the District Magistrate which appears to have been based on a misunderstanding. While dealing with the redistribution of criminal cases the District Magistrate could not have been normally expected to transfer a case to the file of a Magistrate who is not himself competent to deal with it and in all probability the direction should have been confined only to the transfer of first class cases. Another conceivable possibility however, is that having regard to the serious nature of the offence under sec tion 307, P. P. C. punishable with a sentence of transportation for life under certain circumstances, the District Magistrate might have chosen to get the case tried by a Sessions Judge, as a Section 30 Magistrate would not be able to award a sentence of transportation for life.
In that event, the learned District Magistrate was certainly not within his right to make such an order of transfer and as such had transgressed bis jurisdiction.
9. A persual of the commitment order in the main case makes it abundantly clear that left to himself the learned Magistrate would not have passed such an order which was done merely in compliance with a direction of the District Magistrate as stated earlier. Having otherwise found himself incompetent to pass an adequate sentence on the accused in the event of their conviction he could have forwarded the case to the learned District Magistrate for being referred to a Section 30 Magistrate. In the circumstances therefore the inference is inevitable that it was merely a perfunctory order passed incompliance with misconceived or misunderstood direction of the learned District Magistrate without independent application of his own mind. In this view of the matter, even if otherwise the evidence on the record would have justified such orders of commitment they cannot be allowed to stand and are accordingly quashed.
10. Since however, the entire prosecution evidence had been recorded by a Magistrate of competent jurisdiction, it is directed that the record of all these cases may be sent to the District Magistrate, Gujrat, for a fresh decision according to law by a Section 30 Magistrate who shall proceed with the trial of the cases from the stage where it was left by the S. D. M. Section 30 Magistrate, Mandi Bahauddin i. e, the examination of the accused persons under section 342, Cr. P.
C. This disposes of all the four cases. Since however, these are very old cases, the learned Magistrate shall dispose them of in the month of November 1971 without fail even if a day-to-day hearing is called for. .