This application under sections 215, 439 and 561-A, Cr. P. C. is directed against an order of committal passed by Sub-Divisional Magistrate, Shikarpur dated 12-6-1968.
2. The short facts are that one Ramzan (now deceased) on 9-3-1963, addressed an application to the Anti-Corruption Inspector, Sukkur, to the effect that he owns Qabuli land in his name and Khata situated in Deh Saindad Wagan Taluka Garhiyassin. Sub-Registrar, Shikarpur and Syed Kamil Shah (the present accused) in collusion prepared a false document of sale of his lands and registered the same, which neither bear his signature nor he signed it, the sale has been made (supposedly by him in favour of Kamil Shah) for Rs. 6,000 out of which half amout received by Sub-Registar and the remaining has been saved by Kamil Shah. He requested for immediate action and sent a true copy of the forged document.
Another application 8-10-1963 was also addressed to Anti-Corruption Police by the said Ramzan, in which he gives the full name of said accused Sub-Registrar, Shikarpur, as Munshi Abdul Ghafoor Stamp- Vendor, Mukhtiarkar^ office, who it is represented in collusion with Kamil Shah, forged a sale deed and usurped his property by preparing false documents, lt is further explained that "your honour had obtained my thumb-impressions about three months back, but so far no action has been taken and a request has been made to take legal action against the above accused, with this additional information that accused have filed a declaratory suit against him and he feared accused might take his crop which was ready then.
3. The Anti-Corruption Police started enquiry against the accused, got their statements and also secured thumb-impressions of Ramzan before a Magistrate on a paper on 10-5-1963 and sent the same on 18-10-1963 along with affidavit supposedly thumb-impressioned by Ramzan filed before the Sub-Registrar in support of sale deed, to Finger Print Bureau, Lahore for report. The report of the Officer-in-Charge, Finger Print Bureau, Lahore Exh. 5/A is as under:-- "We have compared the finger impressions on the documents mentioned in the margin, received from the Circle Officer Anti- Corruption, Sukkur with his letter No. 1855 dated 18-10-63 and are of the opinion that the impression marked as
(1) A stamped deed No. 1622/Dated "<4 on the stamped 24-4-62 an impression on its back now deed No. 1622 is marked as A. different from the left
(2) A sample paper bearing the left thumb-impressions of thumb-impressions of Mohd. Ramzan.
Muhammad Ramzan on his sample paper."
4. The Anti-Corruption Police it seems, ultimately did not forward challan against the accused persons before the Court. Complainant Muhammad Ramzan was compelled to file a private complaint on 22-9-1964 under section 467/471/474, P. P. C. in the Court of City Magistrate, Shikarpur which was transferred for disposal before Civil Judge and F. C. M., Garhiyassin, the case lingered on and in the meanwhile complainant Muhammad Ramzan expired, and on 25-7-1966 Civil Judge and F. C. M., Garhiyassin discharged the accused under section 259, Cr. P. C. on the ground of non- prosecution of the complaint.
5. Another criminal complaint against the accused however, was filed by Shah Muhammad in the Court of Additional District Magistrate, Shikarpur on 29-S-I966 which came up for disposal before Resident Magistrate, Shikarpur. During the hearing, on various dates 5 witnesses were examined by the complainant in the Court of Sub-Divisional Magistrate, Shikarpur and also the statements of both the accused were recorded by the learned Magistrate.
6. After considering the evidence produced by complainant and the statements of accused persons the learned S. D. M. was satisfied that a prima fade case against accused Kamil Shall under section 468/471, P. P. C. and under section 468/471/109, P. P. C. against accused Munshi Abdul Ghafoor having been made out he passed the impugned committal order dated 12-6-1968. The charge was read to accused, they pleaded not guilty and offered to produce defence.
7. On 12-6-1968, when charge was framed against accused and order for committal was passed against them by S. D. M., Shikarpur, an application under section 208, Cr. P. C. was moved on behalf of accused, for summoning and examining one Head Constable Garhiyassin Police Station to produce 154, Cr. P. C. Book containing F. I. R. No. 154 dated 17-12-1963, this application was duly rejected by the learned Magistrate by passing the following order;-- "Petition moved today 12-6-68 after the case has been closed on the earlier date. Today it is for order, and charge, if any. Hence the petition is rejected.
12-6-68 (Sd.) S. D. M., Shikarpur.
The accused are directed to adduce defence before the higher Court.
12-6-68 (Sd.) S. D. M., Shikarpur.
The present application purports to challenge the above-stated order of committal dated 12-6- 1968 mainly on the grounds:--
(a) That the committal order is bad in law inasmuch as it contains no reasons or any discussion of the evidence adduced by the complainant.
(b) That the learned S. D. M. failed to comply with the mandatory provisions of section 208, Cr. P. C. as he rejected the application for summoning writer Head Constable Ghari Yassin as requested on behalf of the accused, and this order of rejection gave no reasons the committal order is a nullity.
Other grounds being insufficiency of evidence against accused and * non-production of an affidavit signed by Muhammad Ramzan by the prosecution, which has been lost in the process. I have heard Mr. Iqbal Baluch, Advocate for applicants and Mr. S. Noorul Hassan, Advocate for the State.
8. In support of his case, that under section 208 (3), Cr. P. C. the Magistrate is bound to issue summons and examine witnesses produced on behalf of the accused, counsel for the applicants relied on in the case of Abbas Shah v. The State (1). This was a case whereby four persons were before the Magistrate on a charge under section 302/149, P. P. C. for commitment under Chapter XVIH of the Code of Criminal Procedure. A request by [8] counsel for accused was made to the Magistrate to examine some witnesses on behalf of accused under section 208, Cr. P. C., this request was opposed by counsel for the State on the ground that under section 208, Cr. P. C. only those witnesses can be examined for defence who were present and as no names had been given in the application, the Court was not bound to call or record any defence evidence, the learned Magistrate agreeing with the counsel for the State rejected the application of the accused for examining defence witnesses on the ground that as no witnesses have been produced before him and he has discretion under section 212, Cr. P. C. which according to him was to be read with section 208, Cr. P. C. to examine those witnesses produced before him.
He further ordered to submit a list of defence witnesses within two days and the accused were committed for trial before Sessions Judge. It was held that "the committal order was illegal. The right to cite and examine witnesses under section 208 is independent of the list of witnesses to be put in under section 211 and section 212, refers to the list of witnesses required to be put in under section 211, Cr. P. C. and not to the right of citing witnesses under section 208 of the Code. The accused may put in a list of witnesses under subsection (1) of section 208 and on such an application being put in, the Magistrate is bound under subsection (3) of section 208 to issue process unless for reasons recorded he deems it unnecessary. This is a mandatory provision of law and a commitment made without such compliance is illegal." The case was therefore, remanded for taking evidence if any under section 208, Cr. P. C.
9. To my mind the facts of the above case are distinguishable than those before me, here the accused when examined by the Magistrate, gave no indication as to their desire for summons or examining any defence witnesses nor any application on their behalf was moved on that date.
Again when charge was read over to them, and when they were informed that they will be tried before the Sessions Judge, no objection was raised by them that they may be tried by Enquiry Magistrate himself or that evidence of their witnesses be recorded before commitment to Sessions Couit, they only stated that they will adduce evidence that is before the trial Court, that right of accused, therefore, remains intact and the commitment order in no way deprives them of their this valuable right nor in any way prejudices their case. In the case cited there, a specific request was made for summoning of witnesses before committal and that request being rejected, he was asked to file list of witnesses within two days, but before waiting for the list to be filed, the order of committal was passed, which proceedings have been disapproved, the order was set aside by the Court. No such grievance has been made on behalf of applicants in this case, therefore, in my opinion the above judgment does not help the applicants.
10. The perusal of the record shows that the applicants! were given sufficient opportunity by the learned committing! Magistrate in case they wanted to produce any evidence under1'1 section 203, Cr. P. C., but it appears that this opportunity was not availed of by them because from the order-sheet it appears that on 8*4-1963, counsel for the applicants made an application to the Court for admitting affidavit and some other documents, he could very well at that time indicate to the Court or otherwise make an application for calling any witness on their behalf but this was not done. The case was again adjourned on various dates i.e. 22-4-1968, when accused were present.
Advocates for the parties were present and also the complainant was present. Statement of one witness Ahmed for complainant was recorded. The case was next put off for 8-5-1968 for recording of the statement of the accused and the parties were directed to attend. On this date although the accused along with their Advocate were present, so was the complainant. The accused persons allowed themselves to be examined but even then they did not move the Court for summoning any witness on their behalf. On 22-5-1968, the learned Magistrate heard the arguments of the Advocates for the parties for consideration of the charge, even then no application was made by the present applicants for summoning of their witnesses. Not only this, three other adjournments were given by the learned Court before framing of the charge and committing the accused for trial, these are 28-5-1968, 29-5-1968 and 4-6-1968. On all these dates the applicants were before the Court they could very well avail the opportunity to move an application for summoning of their witnesses but nothing was done, lt was only on 12-6-1968 and that also after framing of the charge and after passing the committal order that an application was moved on behalf of the applicants for summoning one witness namely Writer Head Constable, Ghaii Yasin and that also for purposes of producing an F. I. R. supposedly to have been lodged on 17-12-1963 at the Police Station Garhi Yassin. This application in my opinion was very rightly rejected by the learned Magistrate who passed the order dated 12-6-1968 reproduced above. It appears to me that this application at the last moment and that also after passing of the committal order which had been passed in presence and with knowledge of the applicants was an attempt to take shelter in the sheer technicalities of the law for the purposes of delaying the proceedings. It appears to me that summoning and examining of Writer Head Constable to produce the F. I. R. dated 17-12-1963 in no way would have been helpful to the applicants or to the Court to change its opinion. Had this person been called and examined no cancellatian of the committal order could be made for the simple reason that admittedly proceedings before the learned S. D. M. were based on a private complaint filed by Shah Muhammad dated 29-8-1966 and not on an F. I. R. which may have been filed by deceased Ramzan some time in 1963. [9] or the other the proceedings got lengthy and delayed although the file continued to swell in size but to no consolation to the complainant whose land allegedly had been usurped by the present applicants. It further appears that tampering of the record has also been resorted to because the original sale deed has not bten produced before the Court which should have been in possession of the purchaser Kamil Shah and also an affidavit supposedly to have been signed by deceased Muhammad Ramzan apparently in support of sale deed, had disappeared from the record of the Court and also a serious and ugly attempt has been made by somebody by throwing ink to despoil the allegedly thumb-impression from the register in possession of Sub-Registrar, Sukkur showing the entries of the sale which is Exh. 4/A of the lower Court. It is very unfortunate that no enquiry has been held by the Courts below to fix the liability and punish those who have interfered with the record of the Court as well as with the register which is a public document. I hereby direct the learned Sessions Judge, Sukkur to hold an enquiry with regards to the tampering of the judicial record and tampering with the register Exh. 4/A and punish those who are responsible so that nobody in future should dare to interfere with the judicial record, in case the enquiry has not already been held and report back the result of the enquiry to the High Court. l2. The applicants in my opinion will have the sufficient opportunity before the trial Court to adduce whatever evidence they may like in support of their case, non-summoning of Head Constable and that also for purposes of producing an F. I, R. of 1963 in my opinion does not in any way prejudice their case.
13. It has been repeatedly held by their Lordships of the Supreme Court that inherent jurisdiction given by section 561-A has to be sparingly exercised. I am supported in my this view by a judgment of the Supreme Court of Pakistan reported as Ghulain Muhammad v. Muzammal Khan (1), wherein their Lordships have observed:-- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed does not disclose any offence."
(1) PLD 1967 SC 317 It is apparent that the learned committal Court has come to the conclusion that there is a prima facie case against the applicants and that is why after being fully satisfied he passed the committal order. I see no flaw in the impugned order of the learned S. D. M.
14. _ For the reasons given above I reject this application which is hereby dismissed and uphold the committal order passed by the learned S. D. M., Shikarpur dated 12-6-1968. In view of the unnecessary delay caused already in proceedings of this case it is expected that the learned Sessions Judge, Sukkur will dispose of this case within three months' tim. The record of the case may be sent back to the trial Court.
Application rejected.