This is a revision application filed by complainant Allah Din making a grievance regarding an order of discharge dated 13th February 1968, passed by the Sub-Divisional Magistrate, Nara Valley, Mirpurkhas and affirmed by the Sessions Judge, Mirpw--khas on 20th July 1968.
2. Briefly stated the facts pare that the petitioner is a shop--1tlrspor carrying on business at. Pithoro and Akkri in the district of Mirpurkhas. The petitioner had transported zinc-lead from Karaohi to Akkri. The mattgrial was seized by the Police of Shadi Pali Police Station on 2nd December 1963, as the same was suspected to be smuggled. It may, at this stage, be stated that under a notification issued by the Government the police officers within the District of Tharparker have all the powers of Customs Officers under the Sea Customs Act.
The next part of story is that the complainant coming to know of the seizure of the material approached the police for release of the same on the ground that the same was not smuggled and had been transported in a regular way and octroi also had been paid. The police officer whom the com--plainant had approached for release of the material in question was Head Constable Imam Bukhsh. The latter refused to release the material, because the same had been seized under the orders of respondent S. H. O. Raja Ahmed Ali.
3. It is further alleged by the complainant-petitioner that at about 12-30 a.m. On the night between 2nd and 3rd December 1963, the three respondents along with some other persons cams to his shop at Pithoro and demanded the keys of the shop, opened the cash box and removed Rs. 750.C0 from the same. Thereafter, the complainant-petitioner along with his brother Hussain and one Abdus Samad were arrested and taken to the Police Outpost, Akkri, where they were beaten and tortured. The beating and torture, according to the petitioner-complainant was with a view to extort confession train them It, is then alleged that on the 1973 4th of December 1964, the complainant-petitioner, his brother Hussain and Abdus Samad were produced before the First Class Magistrate, Samaro for remand, where they made a complaint regarding maltreatment by the police. The Magistrate referred them to the Medical Officer for examination. The matter, according to the complainant-petitioner, was reported to the superintendent of Police, Tharparkar, who promised to hold an enquiry, but no enquiry was held. On the basis of these allega--tions, the complainant-petitioner filed a complaint on 13 February 1964, viz. About ten weeks later in the Court of Sub-Divisional Magistrate, Nera Vellay, Mirpurkhas under section 342/380/330 read with section 34, P. P. C.
4. This complaint was originally filed against the three respondents and also against two Constables Gul Hassan Shah and Mehendremal. These two Constables remained absconding throughout the proceedings, and the case, therefore, proceeded against the remaining three respondents. This case needless to state was a committal enquiry, as offence under section 330, p.
P. C. Was triable exclusively by the Court of Session.
5. The respondent S. H. O. Raja Ahmed Ali had produced the complainant-petitioner along with Hussain, Abdus Samad and Ramzan before the First Class Magistrate, Samaro on 4th December 1963, for remand to police custody for a period of fourteen days. On being questioned by the Magistrate, the four accused persons alleged mal-treatment by the police, and therefore police custody remand was not granted and instead they were remanded to Judicial custody for a period of 7 days and, in the meantime, a direction was made for examination of these accused persons by the Medical Officer. The case of the petitioner --complainant is that he was examined by the Medical Officer, but neither the Medical Officer was produced in Court, nor the medical certificate was submitted. In fact, the complainant --petitioner stated that he did not obtain the certificate from the medical officer who had examined him.
6. At the committal enquiry, the complainant-petitioner examined himself and eight other witnesses. Of these witnesses, Haji Rehmatullah, Ghulam Sabir, Abdur Rasheed, Ghulam Rasool and Rasool Bakhah were witnesses who claimed to have gone to the police station to obtain the release of the complainant-- petitioner. They make allegations of a general nature with regard to the seized goods not being contraband and mal--treatment by the police. Of the remaining three witnesses, namely, Abdus Samad was the same person who had been arrested with the complainant-petitioner Allah Din, Muhammad Omar was a broker who had procured the seized goods for the complainant-petitioner and the last witness Kishanlal was a Sarishtedar of the Court of Joint Civil Judge and First Class Magistrate, Mirpurkhas, who produced the challan submitted by the respondent S. H. O. Raja Ahmed Ali against the complainant petitioner and the co-accused for the offence under section 167, Sea Customs Act.
7. The respondent Raja Ahmed Ali in his statement has stated that he bald seized the goods, because the same attracted the provisions of section 167 (81) of the Sea Customs Act, and for the said offence, the complainant-petitioner and other accused were actually sent up to stand trial. He denied the allegation of maltreatment and further stated that the complaint had been filed to harass the investigation agency; so that the case of smuggling may not be pursued. Head Constable Imam Bukhsh and Constable Abdul Hakeem substantially adopted the statement of S. H. O, Raja Ahmed Ali.
8. The Sub-Divisional Magistrate discharged the three accused-respondents on the ground that besides the evidence against the accused-respondents being weak, the same has been furnished by witnesses who were biased, and, since their evidence was tainted, no reliance could be placed on the same. The committal Court was further of the view that there was no evidence to support the allegations of wrongful confinement, as the petitioner-complainant had been challaned in a proper Court of law to stand trial on the charge of smuggling. With regard to the allegations of theftth of Rs. 750.00, the committal Court die believed the same, because out of the two witnesses Hussain and Abdus Samad, who, according to the complainant-petitioner were present at the time of commission of theft; Hussain was not produced and Abdus Samad had not spoken about this theft in his evidence. The committal Court also weighed the circum--stances of absence of medical evidence against the complainant --petitioner and found that there was no evidence regarding mal-treatment for the purposes of extortion of confession. On the above reasoning the committal Court came to the conclusion that no prima facie case had been made out against the accused - -respondents and discharged them.
9. Against this order of discharge, the petitioner-com--plainant filed a revision application in the Court of Sessions Judge Tharparkar. This revision application was also dismissed, because the Sessions Judge was of the view that there had been no flagrant mis-appreciation of evidence as might be considered to have led to the passing of an order which may be termed as perverse or manifestly unreasonable, or fallacious or prima facie incorrect. The learned Sessions Judge in his order has stated that the circumstances under which an order of discharge is passed under section 209;, Cr. P. C. Are similar to those under which order of discharge ,under section 253, Cr. P. C.
Is liable to be set aside.
10. Against the dismissal of this revision application by the learned Sessions Judge, the petitioner filed a revision application in this Court which was admitted by my learned brother Muhammad Haleem, J., for consideration of the question whether the committal Court could discharge the respondents in respect -of an offence exclusively triable by the Court of Session.
11. Of the offences alleged against the respondents-accused, the offences under sections 2217 and 330, P. P. C. Are exclusively triable by the Court of Session. The learned Advocates on either sides have argued this question at length before me and both the Advocates, have placed reliance on two cases decided by the Supreme Court, namely, Mazharul Raq v. Ishaque Sardar and others (1) and Rarl Balldv Shaha Roy v: Gopi Ballav Shaha drtd another (2). On a reading of the order of the learned Sessions Judge, I am of the view that in his equation of norms on which oases ban be discharged in committal enquiries and cases triable by the Magistrate, he his taken patently an erroneous view. The law is well settled that while 8 trial Court ties a wider discretion in the matter of appreciation of evidence for the purposes of framing of a charge, the scope of enquiry in arses of committal is narrow. Even the words employed in sections 209, Cr. P. C, and 254, Cr. P. C. Clearly indicate the difference in the principles applicable to committal enquiries and other cases in the matter of discharge oaf en accused. While section 209, Cr. p. C. States that an accused person shall be discharged if there do not exist sufficient grounds for committing him for trial, section 234; Cr. P. C. States that a charge, shall be framed if there is ground for presuming that the accused.
While committed an offence triable under Chapter XXI of the Criminal Procedure Code. Section 253, Cr. P. C. Also states diet al accused may be discharged if no case of a nature is made out against him which, if unrebutted would warrant his conviction. On a reading of sections 253 and 254, Cr. P.
C. It would appear that the criterion or principle laid down for discharge in a case triable under Chapter XXI, Cr. P. C. Is that there should be no evidence as might warrant a conviction of the accused. On the other hand, section 209, Cr. P. C. Contemplates that for the purposes of framing of charge the Court only needs to be satisfied that there are sufficient grounds for committing the accused.
12. Sections 209 and 210, Cr. P. C. Were considered by their Lordships of the Supreme Court in the two cases cited above. In PLD 1959 SC (Pak.) 347, their Lordships held that the Magistrate holding the preliminary enquiry has power to sift and weigh the evidence only for the purposes of determining whether or not the case was fit for committal, and not for deciding about the guilt of the accused. Their Lordships further held that no hard and fast rules could be laid down regarding the distinction between the functions of the committing Magistrate and the Sessions Court, but the safe guide was whether on the evidence adduced before .The committing Magistrate a conviction of the accused was possible. 1n the latter case reported in PLD 1962 SC 480, where a reference was made by their Lordships to the earlier decision, their Lordships strongly disapproved the extension of benefit of doubt to the accused and weighing of the plea of self-defence by the committal Court. However, their Lordships also stated that cases were conceivable where the pro-- secution evidence failed altogether, and quite plainly, to make out a prima facie case, and in such cases the Magistrate could discharge the accused. The scope of sections 209 and 210, Cr. P. C. Has come up for consideration in several other cases reported as Jashanmal J. Gulrajani and others v.
Emperor (3), In re: V. T. Elaya Pillai arid others (AIR 1947 Mad. 191), Ramgopal Ganpatrai Bula and another v. State of Bombay (PLD 1958 SC (Ind.) 293), Endapalle Ella Reddi v. Emperor (AIR 1937 Mad. 654), Akberally Tayaballi and others v All Mohamed Abdul Hussain (AIR 1939 Bone: 372) and Zamir and others v. The Crown (P L D1954 Posh. 17). On a close examination of all these authorities, the position that emerges is that a committal Court has to weigh the evidence and appreciate the same on for the limited purpose of finding out whether there is sufficient evidence to put the accused on trial and whether there is possibility of the evidence resulting in conviction and further when the committal Court is of the view that no prima facie case was made out, it would patently be the duty of the committal Court to discharge the accused because committal in such cases would be an exercise in futifity and will result in waste of time of the superior Court.
13. Since the approach of the learned Sessions Judge on justifiability of-discharge has proceeded on equation of the principles enunciated in sections 253 and 254, Cr. P. C. With the principles laid down in section 209, Cr. P. C., I have looked into the evidence myself to find out whether any prima facie case has been made out. One of the factors that has weighed with me is that the incident in the case had taken place nearly nine years back. The accused-respondents have had to undergo the expense and trouble of facing the prosecution in three Courts, and, at this stage, there is a possibility of the evidence (if any) having been lost or destroyed. On such con--siderations I propose to deal with the evidence myself to find out whether a prima facie case exists on the basis of which the accused respondents should be put on trial before the Sessions Court.
14. Of the offences alleged, the offences under sections 220, P. P. C. And 330, P. P. C. Are exclusively triable by the Court of Session. For proving the offence under section 220, P. P. C., the following ingredients have to be proved--: --
(1) that a person should have legal authority to commit persons for trial or to confinement,
(2) that the person should corruptly or maliciously commit for trial or confine a person, and
(3) that a person in so committing or confining a person should know that he is exercising authority contrary to law.
The case is admitted that zinc-lead was recovered from the com--plainant-petitioner. It .Is further admitted that, in respect of possession of this material, the complainant-petitioner along with others was arrested and tried under section 167(81) of the Sea Customs Act. It is contended by the learned Advocate for the petitioner that the complainant-petitioner and others tried along with him, were discharged or acquitted in that case. The learned Advocate was not able to specifically state as to whether that case resulted in discharge or acquittal, but be that as it may, the case did not result in conviction. On the basis of this contention, the learned Advocate's argument was that the case instituted by the respondent-accused against the petitioner complainant was faise and the arrest was corrupt and malicious. Since a copy of the final order in the smuggling case peas not placed before me, I cannot possibly hold that the case in which the complainant petitioner and his accomplices were discharged or acquitted was false. Needless to say, a case may result in acquittal or discharge for several reasons, namely, paucity of evidence, legal defect in procedure or initiating of the prosecution or some other lacunae in the prosecution case. It, therefore, cannot be said that every case that results in acquittal or discharge must be considered to be a false case which should base the foundation of a prosecution under section 220, P. P. C. Against the police officer who instituted the prosecution.
A copy of the remand report submitted by respondent Raja Ahmed Ali before the First Class Magistrate, Samaro, has been placed before me and the same clearly states that the complainant petitioner and others had been arrested for the offence of smuggling. That being the case and in view of the admission of the complainant-petitioner that zinc-lead was recovered from him, it could not be said that any offence under section 220, P. P. C. Had been committed by the respondent-accused.
Moreover, under section 193-K of the Sea Customs Act, a protection is given to every officer acting in the discharge of his duties as a Customs Officer, provided the act done by the said officer is done in good faith or intended to be done in good faith. Section 193-K reads as follows: - "No suit, prosecution of other legal proceedings shall lie against any public servant in respect of anything which is in good faith done or intended to be done under this Act."
15. Moreover, under section 177-A of the Sea Customs Act, the burden of proving, that duty has been paid on any goods that are liable to duty, is on the accused or the person from whom the goods have been recovered.
Having regard to all these circumstances arid the protection given to Customs Officers or Police Officers performing functions under the Sea Customs Act, no case under section 2:0, P. P. C. Has been made out.
16. The next contention of the learned Advocate for the petitioner was that the complainant- petitioner had been kept in police custody for a period longer than twenty four hours prior to producing him before a Magistrate. This contention is clearly misconceived. The petitioner- complainant was arrested at 12-30 a.m. On the night between 2nd and 3rd December 1963. The arrest had taken place at Akkri, a village where no Magistrate functions. The complainant- petitioner had, therefore, to be taken to Shadipali for the purposes of obtaining red. The time spent in the per--formance of journey to the place where a Magistrate is functioning has to be excluded in law. On such exclusion of the time taken for the journey, I am of the view that the complainant- petitioner was produced before a Magistrate within the time required by law.
17. Coming to the charge under section 330, P. P. C., the ingredients of the offence are as follow: --
(1) That hurt should be caused to a person.
(2) That hurt should be caused for the purposes of extorting a confession or any information which may lead to the detection of an offence or restoration of any property.
I have read the evidence of the complainant-petitioner very, minute-- ly, and I find that the complainant-petitioner has not even stated that he had been asked or induced or coerced to make any con-- fession. No doubt an allegation to that effect was made in paragraph 8 of the complaint but that is all the more reason to believe that the allegation in the complaint was false.
Moreover, in spite of the complainant-petitioner having been sent to the Medical Officer, no medical evidence was brought on record. Neither a doctor was examined nor any certificate was produced and in cross-examination the complainant-petitioner clearly stated that he had not obtained any certificate from the Medical officer who examined him. The Magistrate before whom the com--plainant-petitioner was produced for remand and before whom the complaint of maltreatment against the respondents had been made by the complainant-petitioner has not made any mention in his order that he had seen any injuries on the person of the complainant- petitioner. All that I have found in the evidence of the complainant-petitioner and his witnesses is a bare statement that the complainant-petitioner had been beaten by the police. No witness has stated as to the weapon that may have been used for beating the complainant-petitioner or as to whether any visible injuries were found on the person of the complainant-petitioner. Moreover, witnesses Ghulam Sabir, Abdus Samad and Rasool Bukhsh, who have corroborated the complainant-petitioner on the point of beating, have not mentioned the names of any of the three respondents as the persons who beat the complainant-- petitioner. The first two of these three witnesses mentioned the names of Gul Hassan Shah and Mahendremal as the persons who beat the complainant-petitioner, whereas the third witness does not mention the name of any particular accused-respondent as having beaten the complainant-petitioner. That being so, I am of the view that no offence under section 330, P. P. C. Has been made out.
18. With regard to the charge under section 380, P. P. C. The allegations of the complainant- petitioner are that the accused --respondents along with others came to his shop at Akkri at 12-30 a.m. On the night between 2nd and 3rd December 1963, and obtained the keys of the shop from him 'thereafter, the allegation is that the accused-respondents removed a sum of Rs. 750.00 from the cash box in the shop of the complainant-petitioner. According to the complainant-petitioner two other persons were present there at that time, and they had witnessed this incident. The two persons were Hussain, the brother of the complainant petitioner, and Abdus Samad, who was the co-accused with the complainant-petitioner in the smuggling case. Of these two persons, Hussain was trot examined in Court, whose as Abdus Samad did not state in his evidence in regard to the theft of Rt. 750.00. Under the circumstances, the charge under scion 380, P. P. C. Was not at all made out, and the order of the Magistrate, holding this allegation to be not proved, was not only fair but proper.
19. The other aspect of this case that has engaged my attention is that the complaint was belated by nearly two and half months. The incident bad taken place on the 3rd of December 1963, and the complaint was filed on 13th February 1964. No satisfactory explanation for this delay has been given by the com--plainant-petitioner. All that he has said in the complaint and in his evidence is that the co-villagers had made a complaint before the Superintendent of Police complaining of the excesses of he respondents-accused. He had also stated that applications in that behalf were made. There is complete absence of evidence on that point. Neither a copy of the application has been placed on record, nor has any person from the office of the Superintendent of Police teen examined to substantiate the allegation that a complaint had been made to the Superintendent of Police. I am, therefore, of the view that, with regard to the delay in the filing of this complaint, no satisfactory explanation has been given by the complainant-petitioner.
20. Moreover, this incident had taken place nearly nine year back, and, as already stated above, the accused-respondents had to undergo the peril of criminal prosecution thrice. I am of the view that, regard being had to all, the circumstances of this case and also the long time that has elapsed since the commission o the alleged offences, no useful purpose will be served by ordering further proceedings in this matter, specially when on merits I have found that no prima facie case has been made out, an that there is no possibility of the case resulting in conviction The learned counsel for the State has also Opposed the application.
21. For these reasons, I dismiss this revision application.
Revision not allowed.