' SAAD SAOOD JAN, J.-The appellants, Ghulam Muhammad (aged, 45 years) and Ghulam Qasim (aged 27 years) both brothers, were tried by the learned Sessions Judge at Mianwali for offences under sections 302 and 307 read with section 34 of the Pakistan Penal Code for causing the death of Khuda Bakhsh and Allah Bakhsh, deceased, and making a murderous assault upon Muhammad Aslem (P. W. 15) and Ghulam Rasul (P. W. 14). For the offence under section 302 they were sentenced to death and for the offences under section 307 they were directed to suffer rigorous imprisonment for a period of two years. Along with them their father Rab Nawaz and their brothers Allah Bakhsh, Amir Afzal and Qadir Bakhsh were also tried but they were acquitted by the learned Sessions Judge. The appellants have filed a joint appeal against their conviction and sentences and the learned Sessions Judge has also made a reference to this Court for confirmation of the death sentence imposed upon them. The first informant, Ghulam Rasul, has also filed a separate revision against the acquittal of Rah Nawaz, Qadir Bakhsh and Allah Bakhsh and Amir Afzal. The appeal, the reference and the revision will be together disposed of by this judgment.
2. The parties are related to each other and belong to village Maibal Sherif. One Jowaysa was their common ancestor in the fourth degree. A daughter of the first informant is married to Amir Afzal who was acquitted by the learned Sessions Judge. Allah Bakhsh deceased was betrothed to the daughter of Allah Bakhsh who too was acquitted by the learned Sessions Judge.
3. Ghulam Ravel (P. W. 14) and his uterine brother Khuda Bakhsh deceased had some joint land which was contiguous to the holding of Rab Nawaz. The land of both parties became submerged under the slyer which flowed by this village. Sometimes prior to the occurrence the river receded and their lands re-emerged. The parties were not agreed as to the precise boundaries of their respective holdings. To settle the dispute Rab Nawaz made an application to the local revenue authorities for a proper demarcation.
4. About four months prior to the occurrence the cattle of Qadir Bakhab, who was acquitted by the learned Sessions Judge, trespassed into the land of Ghulam Rasul (P. W. 14) and caused some damage to the crop which was standing there. Allah Ukhah deceased, who was a son of Ghulam Raoul (P. W. 14), rounded up the offending cattle and started to take thorn to the local cattle pond.
On the way Qadir Baldish and his sons forcibly took away their cattle from him. This incident which was duly reported to the police further strained the relations between the parties.
5. On the afternoon of 19-8-70 Patwari Muhammad Ismail (P. W. 16) and Girdawar Aziz Muhammad (P. W. 18) arrived in the village for effecting demarcation in pursuance of the application made by Rab Nam,. On hearing about the arrival of these revenue officers Khuda Bakhsh and Allah Bakhsh, deceased, Ghulam Rasul (P. W. 14) and Muhammad Aslam (P. W. 15) went to their land to ensure that the demarcation was properly carried out. They found Rab Nawaz and his five sons including the two appellants already present there. The appellants were armed with guns. Qadir Bakhah, Allah Bakhsh and Amir Afzal were carrying Sotas while Rab Nawaz was empty-handed. Ohulam Qasim appellant told Ghulam Raoul (P. W. 14) and his party to leave the spot but the latter refused to do so. Shortly thereafter the Patwari and the Girdawar along with one Alam Sher left the spot in search of a permanent point for fixing the boundaries. In their absence Rab Nawaz and his sons again asked Ghulam Rasul (P. W. 14) and his companions to go away as they had rounded up their cattle earlier and were obstructing the demarcation proceedings. Ohulam Rasul and Khuda Bakhsh deceased refused to oblige Rab Nawaz and his sons. On this Rab Nawaz abused Ghulam Rasul (P. W. 14) and his companions and raised lalkaros to his sons that they should not allow Ghulam Rasul (P. W. 14) and his companions to escape. Upon this Ghulam Muhammad appellant fired his gun which hit Khuda Bakhah deceased in the face. Khuda Bakhsh fell down. Ghulam Qasim appellant also fired hi) gun which hit Allah Baklosh deceased. Ghulam Qasim then tired a second shot at Ghulam Rasul (P. W. 14) who was not hit. In his place Muhammad Aslam (P. W. 15) was struk in the leg. Allah Bakhah, Qadir Bakhah and Amir Afzal then gave dung blows to Khuda Bakhsh and Allah Bakhsh deceased. After the occurrence the appellant and their companions left the scene of crime with their weapons. Khuda Bakhsh died at the spot while Allah Bakhsh expired on the way to the hospital at Kallurkot.
6. Ghulam Rasul (P. W. 14) went to Police Station, Maibal! Sharif which was at a distance of miles from the scene ofoccurrence. Al the said Police Station he lodged the F. I. R. Exh. P. B. At 9.00 a.m. It was recorded by Muhammad Sher, Head Constable (P. W. 13). As the H ad Constable was about to leave for the scene of crime Allah Bakhsh deceased was brought on a cot to the Police Station by his relatives. The Head Constable then recorded the dying declaration Exh. P. H. A. Of 1,.11ah Bakhsh deceased.
7. Malik Fazal Karim S. I. Conducted most of the investigation in this case. He reached the scene of occurrence in the earlier hours of the morning of 20-8-70. He recovered two empty cartridges from there and prepared the recovery memorandum Exh. R. I. The memorandum was attested by Khuda Yar (P. W. 11) and one Falik Sher who was not examined at the trial.
8. Ghulam Qasim appellant was arrested by Fazal Karim, S. I. On 21-8-70. At the time of his arrest Ghulam Qasim appellant produced his licensed gun (Exh. P. 7) which was taken into possession by the Sub-Inspector through memorandum. Exh. P. K. This recovery was also witnessed by Khuda Yar (P. W. 11). The empty cartridges and the gun were examined by the Fire-arm Expert who was of the opinion that these had been fired with the gun in question. The defence did not challenge this port of the prosecution case and as such the firearm expert was not examined in Court.
9. The post-mortem examination of Khuda Bakhsh deceased was performed by Dr. Nazir Ahmad who was posted as Medical 0fficer in Kallurkot at the relevant time. He found a lacerated firearm wound 6' x7' on the face of Khuda Bakhsh. As a result of the firearm wound the blood vessels of the right side of the face and the right upper portion of the neck were damaged. In the opinion of the doctor this injury was sufficient in the ordinary course of nature to cause death.
10. The post-mortem examination of Allah Bakhsh deceased was also performed by Dr. Nazis Ahmad. Allah Bakhsh had two lacerated firearm wounds located on the medial and front portion of the right elbow and metacarpal bone of right thumb as well as one laceration on the back left side at the level of umbilicus and swelling on the but just below the left scapula. According to the doctor the laceration and the swelling on the back could be caused by a fall on the ground. He was also of the opinion that the firearm injury on the right elbow was sufficient in the ordinary course of nature to cause death.
11. Muhammad Alam (P. W. 15) was also examined by Dr. Nazis Ahmad. He had a lacerated firearm wound 1/3' x 1/3' on the anterior aspect of the right lower leg 3' above the ankle. This injury was simple in nature.
12. The appellants pleaded not guilty to the charges against them. Warn Muhammad appellant denied that he was present at the place of the occurrence at the relevant time. Ghulam Qasim appellant on the other hand alleged that after the Patwari and Girdawar had gone in search of a reliable point for the purpose of demarcation he was left alone with the complainant patty. Khuda Bakhsh and Allah Bakhah picked up a quarrel with him which lcd to an exchange of abuses. Both the deceased then trespassed on his land and Khuda Bakhsh deceased who was armed with a pistol fired at him. He had licensed gun with him and in order to frighten Khuda Bakhsh he fired in the air. Khuda Bakhsh deceased was hit In face. Thereafter Allah Bakhsh deceased tried to hit him with a hatchet and be fired at him in his self-defence. Muhammad Aslam (P. W. 15) was hit by stray pellet. The appellants did not lead any evidence in support of their defence.
13. Although, as already indicated, both parties are related to each other it appears that their relations Inter se were strained at the time of the occurrence. Not only there was a dispute between them with regard to the actual boundaries of their respective holdings but only four months prior to the occurrence Allah Bakhsh deceased was responsible for getting a criminal case registered age nest the appellants when the latter forcibly took away the cattle from him. It is also to be noticed that all the five sons of Rab Nawaz along with him were implicated in this case. In view of the bad relations between the parties and the fact that all persons accused in the occurrence belong to the same family the evidence led by the prosecution will require very close scrutiny.
14. The incident occurred shortly after degarwela which in the months of August would be round about 5.30 p.m. The Police Station is located In the very village of the parties and was only a mile and a quarter away from the spot. Thus there is a delay of more than three hours in the recording of the first Information report. This delay has not been satisfactorily explained on the record. It is clear that the first informant had plenty of time to think of story.
15. Muhammad Sher Head Constable (F. W. 13) has deposed that after recording the F. I. R. As he was getting ready to proceed to the place of occurrence, Allah Bakhsh deceased was brought to him on a cot. He recorded the statement of Allah Bakhsh deceased under section 161 of the Code Criminal Procedure. This statement is Exh. P. H. H. Although this statement is admissible under section 32 of the Evidence Act but we do not think that we can safely use it for basing the conviction of the appellants. There is a time leg of more than three hours between the occurrence and the recording of this statement. During this period Allah Bakhsh deceased could have been easily tutored, to say things which were either untrue or which he had not seen. Apart from that it so closely follows the version and language of the F. I. R. That its authenticity becomes doubtful. It is also to be noticed that it was not produced before the committing Magistrate. We would, therefore, exclude this dying declaration from consideration.
16. The ocular account of the occurrence has been provided by Ghulam Rasul (P. W. 14) and Muhammad Aslam (P. W. 15). Both these witnesses are related with each other. The presence of Muhammad Aslam (P. W. 15) at the scene of occurrence does not admit of any doubt for after the occurrence he was found to be bearing a firearm injury on his leg. The same cannot, however, be said in respect of Ghulam Rasul (P. W. 14). Had he been present at the time, of the shooting it is most unlikely that he would have escaped unscathed.
17. To establish the presence of all the persons accused and the eyewitnesses at the scene of occurrence at the relevant time the prosecution has relied upon the testimony of Patwari Muhammad Ismail (P. W. 16) and Girdawar Asia Ahmad (P. W. 18) and a report prepared by them namely. Exh. P. T. Both these witnesses made admissions favourable to the defence and were as such declared hostile. Thus according to the prosecution's own case they were not reliable persons. It will be noticed that the statements which they had made before the committing Magistrate were not transferred to the Sessions file apparently for the reason that there too they had been declared hostile. The report Exh. P. T. Was denounced by both these witnesses when they alleged that they had been made to write it by the local police under duress. They also averred that they had complained to their Senior Officers about the manner in which the said report was obtained from them. Even if their assertions with regard to the police pressure be disbelieved, still it does not help the prosecution. It is common ground between the parties that at the time of the occurrence both these witnesses bad gone away from the scene of occurrence in the search of a permanent point for the purposes of demarcation. It is not disputed that from the place they were present they could not see the occurrence further they ran to the spot on hearing the report of the gun-fire. As regards what they saw when they reached the spot the report states t [Vernacular matter omitted being illegible-Ed.] ' It will be noticed that the presence of Ghulam Rasul (P. W. 14) has not been recorded in this report.
It is extremely doubtful that these witnesses would have failed to notice his presence had he been there, particularly when they had recorded the presence of every other person involved in the occurrence. Although Ghulam Rasul was undoubtedly present when the Patwari and the Girdawar first reached the spot but the possibility cannot be precluded that he left the scene of occurrence when the revenue official went to seek a permanent point and before the shooting started. We are, therefore, unable to say with any certainty that Ohulam Rasul had in fact witnessed the occurrence. We shall, therefore, exclude his statement from consideration.
15. As already pointed out Muhammad Aslam was a witness of partisan character. He is a nephew of Ghulam Runt (P. W. 14). He has shown his unreliability by alleging that after the shooting Allah Bakhsh deceased was given Lathi blows by Qadir Bakhsh, Amir Afzal and Allah Bakhsh. It is to be observed that in his statement before the police he did not take up this position. It may also be mentioned that the medico4egal report of Allah Bakhsh deceased does not indicate that he was given sot, or dang blows. Obviously Muhammad Aslam (P. W. 15) had made a false statement at the trial in order to make his version conform to the F. I. R. And the position taken by his uncle Ghulam Rasul (P. W. 14). We therefore, find that he is not a person upon whom implicit reliance can be placed. Consequently his evidence will require corroboration before it can be accepted as substantially true.
19. So far as Ghulam Muhammad appellant concerned no corm borating of any sort is forthcoming on the record. Although after h' arrest he led to the recovery of an unlicensed gun but there is nothing in th evidence to link this gun with the shooting. In the circumstance we do not think that his conviction for offences under sections 3)2 and 34 of the Pakistan Penal Code can be sustained.
There is also no question of th applicability of section 34 of the Pakistan Penal Code. It is not th case of the prosecution that the occurrence was premeditated or proplanned. It started all of a sudden during the course of demarcation proceedings. It cannot, therefore, be said that the firing at the complainant party was th result of any common intention shared by Ghulam Muhammad appellant as well. Accordingly, we set aside his conviction and sentences and die that he shall be acquitted forthwith if not required in any other case For the same reasons we think that Rab Newer% Amir Afaal, Allah Baths and Qadir Bakhsh were rightly acquitted by the learned Sessions Jud The revision filed by Ghulam Rasul (P. W. 14) challenging their acquit must be rejected.
20. So far as Ghulam Qasim is concerned ample corroboration is available. It is not disputed by the defence that some empty cartridges were recovered from the scene of crime by the Investigating Officer and that these crime empties matched with the gun belonging to Ghulam Qasim appellant.
In fact Ghulam Qasim admitted that he was responsible for firing at Allah Bakhsh and Khuda Bakhsh deceased. It is also to be noted that Muhammad Aslam (P. W. 15) was hit by a pellet fired by his gun. Ghulam Quint appellant has however, alleged that Khuda Bakhsh and Allah Bakh.Sh deceased picked up a quarrel with him and trespassed into his lands. Khuda Bakhsh deceased then fired a shot at him but he was not hit. With the object of frightening Khuda Bakhah deceased he fired his gun in the air. However Khuda Bakhsh was hit in the face. Thereafter Allah Bakhsh deceased tried to hit him with a hatchet. He fired at him in self-defence. One of the stray pellets hit Aslam (P. W. 15).
21. It will be observed from the dimensions of the injuries received by KW* Bakhsh deceased that he was not more than 6 to 7 feet from Ghulam Qasim at the relevant time. If he had indeed fired at Ghulam Qasim appellant he could not possibly miss. Yet no injury whatsoever was found on Ghulam Qasim appellant. Again Ghulam Qasim was armed with a single-barrelled gun. It required re-loading before it could be fired again. If Allah Bakhsh deceased was armed with a hatchet it is most unlikely that he would have permitted Ghulam Qasim to reload his gun for firing another shot.
In the circumstances it is difficult to accept the version of Ghulam Qasim appellant about the manner in which the occurrence began. However, so far as Aslam (P. W. 15) is concerned we are prepared to accept his story that this witnesses was hit by a stray pellet.
22. For the reasons stated above, we, think that the charges of committing the murders of Khuda Bakhsh and Allah Bakhsh have been brought home to Ghulam Qasim appellant. Since these were unpremeditated and unplanned murders and the occurrence rose suddenly out of a dispute we do not think that it is a fit case in which the capital punishment should imposed. We, therefore, reduce his sentence for the offence under section 302 to imprisonment for life. As Muhammad Aslam was possibly hit by a stray pellet we set aside his conviction under section 307, P. P. C., substitute it with one under section 304 of the same Code and sentence him to six months rigorous imprisonment on this count. All the sentences shall run concurrently. The sentences of death are not confirmed.
23. The appeal, the reference and the revision are disposed of accordingly. . mimpsal 1978 P Cr. L .1 426 [Lahore] Before Muhammad ABDUL HAKIM-Applicant versus BASHIR AHMED-Respondent Criminal Revision No, 881 of 1973. (a) Crintaid Procedure Code (V of MC- - S. 156-Re-investigation-Person found innocent in an earlier enquiry by Police on similar report-A fresh investigation can be launched against such person.-[Investigation]. [p. 429]A Ana Muhammad v. State PLD 1969 Lab. 734 and Muhammad Hayat v. State PLD 1970 Lab. 729 rel.
(0) Criminal Procedure Code (V of 18911)- -- Si. 173 & 190 read with S. 403-Double jeopardy, principle of-Magistrate, not discharging accused on merits after recording any evidence but only cancelling case on basis of Police report under S. 173-Order, held, could not operate as a bar to their subsequent prosecution on basis of a private complaint-Mere fact that Magistrate while passing, impugned order took into consideration factors like absence of independent witnesses and opinion of Medical Superintendent about nature of injuries-Held further, would not change character of his order.-{Double jeopardy]. [p. 430]B 427 Was& v. State PLD 1962 Leh. 105 and Amir All v. State PLD 1968 Lab. 537 rel. Mst. Tirathbai v. Mst.
Sugnibal A I It 1929 Sind 61 ; Cheliomal and others v. Kewal'nal Jeramdas AIR 1939 Sind 38 ; Abdul Hossain Sana v. Suwalal Agarwala and another PLD 1962 SC 242 and Sta'e v. Syed Masood Ahmad 1971 P Cr. L .1 1216 distinguished. ORDBR OF REFERENCE ' There was a dispute between the parties over possession and partition of a house, as a result whereof a scuffle took place between them and a case F. I. R. No, 408, dated 17-8.71 was registered under sections 324, 148/149, P. P. C. Against the respondent. As a counterblast the respondent got a ease F.
1. R. No, 410, dated 17-8-1971 registered at P. S. City Sargodha under section 324/148/149, P. P. C.
Simple injuries were found on the persons of Basbir and Munir Ahmed whereas the injuries of Rashid Bibi and Allah Rakhi were kept under observation. Subsequently District Headquarters Hospital. Sargodha on re-examination declared the injuries as simple and further opined that the injuries appeared to have been caused by friendly hands. Primarily the local police vide Zimni No, 9 dated 23-10-71 reported for the cancellation of case F. I. R. No, 410 dated 7-8-1971 but the P. D. S. P.
Did not agree and ordered that the appellants (accused) should be challaned. Consequently, the appellants were summoned by the Court through non-bailable warrants of arest. They were granted bail by the Court and continued attending the Court till 31-8-72. Meanwhile the appellants applied to the Superintendent of Police, Sargodha for re-investigation of the case. As a result thereof the S. H.
0. City Sargodha reported again on 15-4-72 for cancellation of the case to which the P. D. S. P.
Agreed. In his order dated 31-8-72 Mr. Muhammad Anwar Khan Kiani M. I. C. Sargodha has stated that he had examined the police file and no independent witness except the relatives of the complainant have corroborated the F. I. R. During investigation. Moreover the M. S. On re- examination of the injured P. Ws. Found that the injuries which were caused by sharp-edged weapon were of friendly hands. Accordingly he discharged the accused (appellants) who were on bail from Court.
2. On 13-3-1973 the respondent Bashir Ahmed son of Abdul Hakim filed a complaint in the Court of Ch. Muhammad Sarwar M. I. C, Sargodha against nine persons while three of them were not challaned by the police previously. In the said complaint the respondent Basbir Ahmed son of Abdul Hakim narrated his ignorance about the fate of challan case F. I. R No, 410 dated 17-8-1971. He also concealed the fact regarding re-examination of the injured P. Ws. The Magistrate recorded the statement of the complainant on the same day, ie. 13-3-13 and adjourned the case for 21-3-73. The last evidence of bth witness Lady Doctor Mrs. Mumtaz Bhatti was recorded on 25.5-73 and on the same day the Magistrate ordered that prima facie a case is made out against the accused under sections 325, 324/149, 148, P. P. C. And that they should be summoned for 6-6-75. Accordingly all the accused persons including three ladies were summoned through an ordinary Robkar wherein intimation was given to the accused to appear in the Court on 6.6-1973. The Robkar was served on five out of 9 persons mentioned therein. On 6-6-1973 a revision petition was filed by the accused (appellants) on which parawise comments and record was summoned from the Court concerned for 13-6-1973. In his interim order dated 6-6-1973 Ch. Muhammad Sarwar, M. I. C. Has recorded that rime of the accused on whom service was effected appeared in his Court and the remaining accused who have also been reported to refuse the service should be summoned through non- bailable warrants of arrest for 3-7-73. On 74-1973 the appellants applied to this Court through their counsel that the execution of non-bailable warrants of arrest issued by City Magistrate may be suspended as they were present in the Court of District Magistrate, Sargodha on 6-6-1973. The request was acceded to and the execution of warrants was suspended till further orders. GROUNDS FOR REFERENCE
(1) That the impugned order of Ch. Muhammad Samar, M. I. C., Sargodha dated 25-5-1973 is against law and he was not competent to revise the order of discharge dated 31-8-1972 passed by his predecessor Mr. Muhammad Anwar Khan Kiani and that order of discharge still holds good as it has not been set aside by any superior Court. (II) That Ch. Muhammad Sarwar M.
1. C. Did not apply his mind to the facts of the case properly. He did not examine the finding of the Investigating Officer and opinion of Medical Superintendent. The order is therefore improper. (III)
That Ch. Muhammad Sarwar M. I. C. Even did not care to see that the number of accused was nine in the complaint while in the previous challan the number was six. (I a) The learned Magistrate did not appreciate the fact that the order of discharge was passed on merits and that the accused had been appearing before Mr. Muhammad Anwar Khan Kiani M. I. C. Prior to order of discharge.
Submitted.
ODDER OP THE COURT ' MUNIR FARUKEE, J.-After having perused the record I am unable to accept the recommendation for quasbment of the proceedings made by the learned District Magistrate in his reference under section 488, Cr. P. C. As the contention that the order dated 31st August 1972 of Mr. Muhammad Anwar Khan Kayani, then Magistrate, tHat Class, Sargodha cancelling the ease (F. I. R. No, 410 of 1971 of Police Station City Sargodha, In re: State v. Bari* Ahmad Ch. And discharging the accused- petitioner) having been passed on merits operated as a bar to the prosecution of the petitioners on the basis of a private complaint filed by the disgruntled complainant (respondent) is utterly erroneous and misconceived. In taking this view, reliance is placed on a Full Bench decision in Wart?, case (1) wherein his Lordship observed as under :- "Where a Magistrate has cancelled a case there is no occasion for the Sessions Judge to hold that the accused has been discharged or that consequently he has power to order a retrial. The accused can be discharged only if some evidence has been recorded. Such a case does not fall within the revisional jurisdiction of the Sessions Judge and any order for further inquiry would be set aside by the High Court." the above case had likewise arisen out of a cross-firing between two parties resulting in murder of one person on one side and injuries to some on the other side. Consequently, two counter-cues had been registered by the police one under sections 148, 302/149, P. P. C. Against the party of Kanm {{FOOT NOTE}}
(1) PLD 1962 Lan. 405 {{FOOT NOTE}} Dad and the other under sections 148, 307/149, P. P. C. Against the party of Tikka Khan. After submission of incomplete challans the Deputy Superintendent of Police sent a report about the 2nd case that the prosecution case being discrepant the accused may be discharged and accepting it the Magistrate discharged the accused, l e., the party of Tikka Khan.
2. The complainant (Karam Dad) went in revision to the Court of Sessions against this order contending that the Magistrate was not justified in discharging the accused without recording evidence, as the challan had been put in Court. From the other side it was urged that as the impugned order only amounted to cancellation of the case it was, therefore, not revisable.
3. The learned Sessions Judge remanded the case for further enquiry under section 436, Cr. P. C.
Observing that the order of discharge though passed on the recommendation of the Deputy Superintendent of Police but being based on merits, Le. Divergence in prosecution version, it was neither covered under section 178 of the Criminal Procedure Code nor was of an administrative character.
4. The accused petitioners feeling aggrieved by this remand order questioned its correctness before the High Court through a petition under section 439 of the Criminal Procedure Code, which was placed before Kayani Chief Justice, as he then was, who on the basis of the views expressed in Muhammad Nawaz v. The Crown (1) referted it to a Full Bench for decision on the following two points
(1) Whether when a challan is received by Magistrate he takes cognizance of the case.
(2) Whether in the event of a second report by the police recommending cancellation of the case he can accept the report before he has started with the trial in the presence of the first challan. The Full Bench replied In the affirmative on both those points resulting in the decision as reproduced above by me.
5. In accordance with this verdict of the Full Bench which has been persistently followed by this Court such orders are deemed to have been passed under section 173 read with section 190 of the Criminal Procedure Code and amount only to an adminiptrative order regarding the cancellation of the case and not to the discharge of the accused in judicial proceeding which could operate as a bar against their fresh prosecution. In Amir All's case (2) one of us following an Indian Authority 1.
0. Boxwala v. Sarah Rustanyi Engineer (3) was pleased to take a different view about the nature of such order', but had re-affirmed the legal right of the informant whose case is cancelled under section 173, Cr. P. C. That he can seek his remedy by filing a complaint against the accused discharged under this order.
' In the case in hand we are only concerned with the latter aspect and in the view that I have taken I am duly supported by this judgment as well. This Court has gone still further in the matter by holding that even a fresh investigation can be launched against a person who had been found Innocent {{FOOT NOTE}}
(1) 1948 Cr. L J 774 (2) PLD 1968 Lab. 537
(3) AIR 1944 Born. 294 {{FOOT NOTE}} in an earlier enquiry by the police on a similar report. See Atta Muhammad! Case (0, Muhammad Hayat's case (2) and Alam Dln's case (3).
6. Learned District Magistrate has relied on four authorities, namely, Mst. Tirathbai v. Mt. Sugrdbai (4), Chellomal and others v. Kewalmal iesamdas (5), Abdul Hossain Sana v. Suwalal Agarwala and another (6) and State v. Syed Masoad Ahmad (7) which are clearly distinguishable from the facts of the present case. In the first two cases the complaint on similar facts had already been dismissed under section 203, Cr. P. C. By a judicial order passed by another Magistrate and entertainment of a fresh complaint would, in fact, amount to re-opening of the case as in appeal, revision of a review petition, which was beyond his jurisdiction or scope of his authority. These cases were, therefore, not applicable at all to this case.
7. In the third case to the discharge order had been passed under section 253, Cr. P. C, holding that the charge was groundless, pertinent remark of their Lordships in the body of this judgment is being reproduced below to indicate their viewpoint about it "The difference between the view we are taking and the view which was taken in the Full Bench cases (of pre-partition Indian Courts) is not so great as it may at first sight appear. It had been accepted in these cases that if there has been a discharge, after hearing of evidence, there should not be a second prosecution and that Is substantially the basis of this judgment."
' This observation clearly envisaged a discharge order passed on merits under section 203/253, Cr.
P. C. i,e, after taking cognizance and recording some evidence therein and not merely based on a perusal of the police report or for that matter the police file, as done in the present case.
8. In the fourth case of State v. Syed Masood Ahmad even enquiry had been taken in hand and of the three witnesses, who appeared, one did not support the prosecution and the remaining two were given up, but the ease was later withdrawn under section 494, P. P. C. Resulting in the discharge of the accused under section 424 (a), Cr. P. C. This case was likewise inapplicable to the facts of the present case.
9. As would appear from the relevant order itself the Magistrate had not discharged the accused- petitioners on merits after recording any evidence but had only cancelled the case registered at the instance of the respondent-complainant on the basis of the police report under section 173, read with section 190, Cr. P. C. It, therefore, could not operate as a bar to their subsequent prosecution on the basis of a private complaint.
10. The assertion that the Magistrate concerned had taken into consideration, some factors, like absence of independent witnesses and th opinion of the Medical Superintendent about the nature of the injuries w passing the order, will not change the character of his order as the police bad also based its recommendations on the same grounds so it cannot be urged that it was an order on merits as neither any prosecution witness nor t Medical Superintendent had been examined by him, in the case even the {{FOOT NOTE}}
(1) PLD 1969 Lab. 734 (2) PLD 1970 Lab. 729
(3) PLD 1973 Lah. 304 (4)AIR 1929 Sind 61
(5) AIR 1939 Sind 38 (6) PLD 1962 SC 242
(7) 1971 P Cr. L 1216 {{FOOT NOTE}} delay in lodging the complaint could have been satisfactorily explained by the respondent in his evidnece, if called upon to do so.
11. M a result of this discussion I have no option but to reject this reference and remanding the case for further proceedings direct that it shall be disposed of simultaneously with the cross-case (P. I. R.
No, 408 of 1971).
Reference rejected.
1978 P Cr. L 431 [Peshawar] Before Ghulam Safdar Shah, C J SHAHZADA AND 53 owns-Petitioners versus Malik SHAMSUDDIN AND ANOTHIR-Respondents Criminal Revision No, 22 of 1974, decided on 20th May 1974.
(a) Criminal Procedure Code tV of 189f)- -- S. 145-Jurisdiction---Necessary requirements for. A perusal of subsection (1) of section 145 would show that before taking cognizance of a case, the Magistrate is required to satisfy himself about what are called the existence of necessary elements for the foundation of his jurisdiction, namely: (a) That a dispute likely to cause a breach of the peace exists, (b) that the dispute refers to land or water or the boundaries thereof, and (c) that such land or water is situated within the limits of his territorial jurisdiction. And if he finds that these are there, his jurisdiction would be well- founded notwithstanding the fact that during the inquiry he omits/disregards the other requirements of the section. (p. 436JA 0) Criminal Procedure Code (V of 1898)- - S. 145-Provisions of S. 145-Aims and object. The object of section 145, Cr. P. C., appears to confer on the class of Magistrates, mentioned therein, the necessary jurisdiction to deal with situations of urgent nature in which dispute likely to cause a breach of peace exists concerning any land or water or the boundaries thereof. In other words, the principal object, which the Legislature intended to achieve by this section, is to preserve the peace of society. And although this section appears in Chapter III of the Code of Criminal Procedure, it is substantially in the nature of a civil enactment. A perusal of the section would show when a Magistrate takes cognisance of a case thereunder he for all practical purposes is a civil Court inasmuch as if he Is satisfied that a dispute likely to cause a breach of peace concerning any land of water or the boundaries thereof, be shall make an order in writing stating the grounds of his being so satisfied, and requiring the parties concerned to attend his Court in person or by pleader on a specified date and put in written statements of their respective claims as regard the fact of actual possession. The expression in subsection (1) of that section of a written statement is worth noting. The second proviso to subsection (4) empowers the Magistrate to attach the subject-matter of dispute until his final decision. J if he be of the view that the matter is one of urgency. Subsection (7) of that section provides that if party to the proceedings dies, the Magistrate may cause his legal representatives to be brought on record. And according to subsection (8) of it, he may, if he is of the opinion that any crop or other produce of the property is subject to speedy and natural decay, pass an order for its proper custody or sale and upon the completion of inquiry shall make an order for the disposal of such property or the sale proceeds thereof, as he deems fit. Section 145 which also appears in Chapter XIII of the Code, provides that if a Magistrate reaches the conclusion that neither party was in possession of the property on the target date or is unable to satisfy himself as to which party was in possession, he may attach it until a competent Court has determined the rights of contending parties ; provided that he may withdraw his attachment order at any time if he is satisfied that there is no likelihood of any breach of peace. It is clear that while exercising juri sdiction thereunder a Magistrate would have no power to an award punishment to a party even if it is found by him not to have been in possession of the land in dispute on the target date. In other words, even if he comes to the conclusion that a party before him bad, maliciously, and without any basis, created a dispute with the other party, still all that he would be empowered to do under section 145, Cr. P. C. Is to past an order that the other party was in possession on the target date and direct that the party, which failed before him, would not interfere with the possession of other side. But in case he is aggrieved ho might establish his right in Court. [p. 439JB & C
(e) Procedure Cods (V of 1898)- - S. 145-Proceedings under S. 145-Locus stand/ to contest-Petitioners taking no plea in their written statement that respondents were not agents of owner, in possession of land in dispute- Respondents on other hand claiming possession as agents of land-ownerRespondent's power of attorney to counsel also attested by landowner-Contention that respondents not having claimed specifically to be in possession of land in dispute, Magistrate had no jurisdiction to proceed with inquiry nor could pass any order nor respondents had any locus stand' to contest proceedings- Contention, held, had no force and rejected being more technical than real, in circumstances. (p.
440]D
(d) Colonial Procedure-(V of 1898)- - S. 145 read with Civil Procedure Code (V of 1908), 0. IX, r. 1-Agent, appointment of-Prcceedings under S. 145-Substantially of civil nature-Language used in S. 145, Cr. P. C. & r. 1 of 0. IX substantially same-Like a party to civil proceedings, having a right to appoint an agent to represent his interest on interested party to proceedings under S. 145, Cr. P. C., held, may also be represented by his agent. [p. 440]E
(e) Colonial Procedure Code (V of 1598)- --- S. 145-Dispute as to possession of immovable property-Agent, appointment of-Contention that principal (land owner) having sold a substantial part of disputed land, he had no right to appoint respondents as his exclusive agents to represent him in proceedings under S. 145-Contention, held, had no force-In proceedings under S. 145 even rights of a trespasser, held further, would be protected, unless evicted in due course of law,-[Dispote as to possession of immovable property].
[p. 44016 Apoth All y. Elm, ad All Bhutpa PLD 1958 Dsoca 415 distinguished. {{BLURR PAGE}} SRAHZADA SHAM, Procaine Ccdo (V of 1898)- #TBS ac sue tf, lot #TBE #TBS t 8 #TBE -Dbpute as to possession of immo #TBS C et, pate as to #TBE #TBS ,egai and #TBE other evidence, possession would fo reeoed ,and in dispute recorded in khud kayii? Psriod extendine over lint l s i6 years-Ordee decia:jeg respeodents in possession of disputed reasonabie-- Interference declined in circumstantzie poseaseion of immovable property], fp.
442/9 M. Muhammad Aftal Bangash for Petitioners. aft/71:-WP Qad ats.Eted by Alishativnad Shafig Khan for Respo This revision application is directed gainst the order of Sessions ge, Madan, dated 6-3.73 by which he dismissed the revision application of petitioners against the order of trial Magistrate dated 21.3- 74 passed by hint let proceedings under section 145, Cr. P. C. Holding that respondents V,i'Zfe in actual possession of the disputed land on 8-1i-73, when he took. Cognisance of the proceedings, on that date, and that petiticmees would have no right to rise with their possession and ir they would so &Nil; they should seek remedy in civil Court.
The background of the case is that on 841-73, a oompiaint afore 145, Cr. P. C. Was filed is the Court of Sayed Abdul Hussain M.
1. C. stbisisional Magistrate, Mardan by S. H. Ty ,eging therein that the Laud in dieptire measuring about. 730 Penis was in the self-cultivation of its owner, nameiy, 1.44Avva5zada Col. Muhammad Amir Khan (hereinafter referred to SS Nswaheada).
Tae land in question wet ;eked after for him by his Ksrdar Shamshuddia respondent but the titioners were esserting their ilea, to it on the ground that it had been tenanted to them by Nawatuada and his !Carder Shamsuddin and that in order to forcibly dispossess them the petitioners had, with the active assistance of some other Kissans, tried to trespass into toe land but on account of timely intervention their design WAS frustrated but even so, each party was claiming to be in possession and thus the dispute in question was likely to muse a breach of peace and therefore action was required to be taken in the matter. The case-file would show that when the complaint was received by the learned Magistrate on 8-1i-73, he took cognizance of the matter under subsection (1) of section 145, Cr. P. C. And passed the following order :- I, Mr. Mahmood Khan, Sub-Divisional Magistrate, Mardan am satisfied on the basis of information received by me through the local Police of P. S. Takht Bhai that there is a dispute over the agricultural property measuring 730 jirlbs situated in the limits of Mahal Chad and Mir Amen Killi between the respondents of both the above-mentioned parties and there is likelihood of breach of peace and public tranquility. I, therefore, servo you with this notice not to interfere with the disputed land tilt she final disposal of this case. The respondents of both the parties are directed to submit their written-statements in respect of their claims and also to appear on 12-11-73." {{BLURR PAGE}} In respect to this order, the parties appeased in the proceedings and filed their written statements in which each one of them claimed to be in actual possession of the land and blaming the other aide for interfering with their rights. In order to prove their respective claims the parties appeared as their own witnesses and also produced oral and documentary evidence. The learned Magistrate, however, preferred the evidence--of respondents and held them to have been in actual pose Possession ofibe land in dispute on S-1143, when he took cognizance of the cair., and passed his initial order under subsection (1) of section 145, Cr. P. C. Except for 6 kande of land which he found to be in possession of Ahorad Screed petitioner. He, therefore, directed that the land would remain in possession of respondents. But if the petitioners are aggrieved, they might establish their tights in civil Court. As stated above, their revision application was dismissed by the learned Sessions Judge and hence they have come up in this revision application. Mr. Muhammad Afsal Bangash, the learned counsel for petitioners has asaaikd the impugned order of learned Sessions Judge on two grounds r:
(1) That the entire proceedings in this case were incompetent, for Nawabzada Col. Muhammad Amir Khan was not a party thereto and his Kardas Shamsuddin respondent would be a stranger to the proceedings, for he was a servant of Nawabzada and had not claimed that he was in possession of the land at the relevant time and:
(2) That no opportunity was afforded to most the petitioners by the trial Court to prove their case, and consequently, the learned Sessions Judge should not have dismissed their application in which they had prayed that they be allowed to produce evidence in support of their claim of possession over distinct portion of the disputed land.
' The learned counsel has, in elaboration of his first contention, argued that no proceedings under section 145, Cr. P. C. Would be competent unless the parties thereto have, in their written statements, claimed to be in possession of the disputed land failing which the Court would have no jurisdiction in the matter. He pointed out that all that respondents have alleged in their written statement was that they were servants of Nawabzada (who himself was in possession of the land) and they looked after the land under his instructions and direct supervision. The learned counsel therefore, argued that the entire proceedings before the learned Magistrate were thus incompetent and the two impugned orders passed therein, one by him and and the other by the learned Sessions Judge, would be without jurisdiction.
' There can be no quarrel with the proposition urged by the learned counsel, as it is supported by subsection (1) of section 145, Cr. P. C. And the case-law on the subject. However, the question is whether in the written statement filed by them, respondents can be said to have simply claimed to be the servants of Nawabsada or had also alleged that they were in possession of the disputed land on 8-11-73, when the complaint was filed before the learned Magistrate under section 145, Cr.
P. C. And he passed his initial order on that date ? To answer this question, let us first examine the written statement of respondents which reads as under :- "(1) Thai respondents 1st party are the agent of Col. Nawabzada Muhammad Amir Khan of Hoti, and look after and manage his property including the landed property in dispute under his orders, Instructions and directions directly ;
(2) That the landed property in dispute is "Khud Kasht" and in physical possession exclusively of the said Col. Nawabsada Muhammad Amir Khan since long, in which he has built a bungalow of a huge and s';isSantlial dimensions and also had laid an orchard covering a vast private um These structures and the land in dispute with other structures standing thereon, have always remained in the exclusive physical possession of the said master of the respondents 1st Party who regularly visits and stays there for their proper use, Utility OD, improvements and appropriation, and in that behalf would also, if need be direct and instruct respondents of 1st Party as his agents ;
(3) That in an unimpeachable support of the physical possession of the arsosen of the respondent 1st Party over the land in dispute, reference Respectfully invited to the Revenue Record, which unquestionably snows that said land as his "Khud-kasht" up till to-date. Attached copies of the Jamabandis for 1966.67,-497041 and Khasra Girdawari for the crops of Kharif 196748 to Kharif 1971, and from Rabi 1972, to Rabl 1973, are annexed hereto as Annexures A, B, C and D ;
(4) That respondents 2nd Party, have no interests whatsoever in nor were they ever in possession of the land in dispute. The conduct of the respondents 2nd Party for the last 4/5 days is a high- handedness piracy and an effort at a diabolical, unwarranted and illegal usurpation of the title and possessory rights in land of the said matter of the respondents 1st Party, which had given rise to serious breach of peace between the parties a:
(5) That the said conduct of the respondent 2nd Party apart from being unwarranted and illegal is extremely criminal and constitutes not only criminal trespass of the most heinous nature, but also jeopardizes the lives of peaceful citizens by intentionally creating situations which are determine to peace and law and order.
(6) It is therefore prayed that the respondents 1st Party may be declared as agents of the said Col. Nawabzada Muhammad Amir Khan in possession of the land in dispute, or any other appropriate order envisaged by law, u this Hon'blo Coutt may deem fit, and also order the respondent 2nd Party not to interfere in any manner whatsoever with possession of the respondent 1st Party."
' The learned counsel for petitioners placed emphasis on the allegations made in paragraphs 2, 3, 4 and 6 of this written statement in which according to him respondents had admitted that the land was in possession of Nawabzada. But before I proceed to consider his contention it would be necessary to examine the scheme of section 145, Cr. P. C. Which in relevant parts, reads as under .- "145.-41) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader within a time to .Be fixed by such Magistrate, and to put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute.
(2)
(3)A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some consplcuous place at or near the subject of dispute.
(4) The Magistrate shall then, without reference to the merits or the claims of any such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary, and which the parties was at the date of the order before mentioned in such possession of the said subjects Provided that, if it appears to the Magistrate, that any party has within two months next before the date of such order forcibly and wrongfully dispossessed, he may treat the party so dispossessed, as if he had been in possession at such dater Provided also, that if the Magistrate considers the case one of amergenety, he may at any time attach the subject of dispute, pending his decision under this.
Section.
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed ; and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed but, subject to such cancellation, the order of the Magistrate under subsection (I) shall be final.
(5) If the Magistrate decides that one or the parties was or should under the first proviso to subsection (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the proviso to subsection (4), may restore to possession the party forcibly and wrongfully dis.
Possessed.
(7) When any party to such proceedings dies the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) if the Magistrate is of opinion that any crop or other produce of the property, the subject, of dispute to a proceeding under this section ending before him as subject to speedy and natural deceased he may make an order for the proper custody or take of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale- proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he think fit, at any stage of the proceedings under this section, on the application of either party issue a summons to any witnesses directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrare to proceed under section 107."
Now a perusal of subsection (1) of section 144 would show that beforw taking cognizance of a case, the Magistrate is required to satisfy himself about what are called the existence of necessary elements for the foundation of his jurisdiction, namely z (a) That a dispute likely to cause a breach of the peace exists, (b) that the dispute refers to land or water or the boundaries thereof. And (e) that such land or water is situated within the limits of his territorial jurisdiction. And if he finds that these are there his jurisdictioni would be well-founded notwithstanding the fact that during the inquiry he omits/disregards the other requirements of the section. Hi point of UKU the law in this respect has been finally settled by the Supreme Coury of Pakistan in the cue of Muharnmad 'shape Cotelvdhry v, au LL mahal Begun: (1, in which the opposite principle is stated thus;-- ' If these elements exist, they are sufficient to vest the Magistrate with the jurisdiction to magic the preliminary order in the mode prescribedtherein. If the Magistrate eke having acquired jurisdiction does not strictly comply with the other requirements of the section as to the form of the order and does not state the ground of his being eon satisfied, the crder, is no doubt defective, but this does is it mean that the order is without jurisdiction. The jurisdiction to make the order depends upon the existence of the elements necessary for founding the Jurisdiction. Once the Court has validly acquired that jurisdiction, it cannot be said that it has only the jurisdiction to make a correct in the prescribed form and that whenever the order is incorrect or defective, the order must also be held to be without jurisdiction. We are unable, therefore, to hold that the mere omission to state the grounds, upon which the Court is so satisfied, in the initial order under section 145 of the Criminal Procedure Code necessarily, makes the order also without jurisdiction. The most that can be said is that the failure to do so is a non-compliance with a rule of procedure and mere non-compliance with a rule of procedu se generally is not an illegality vitiating the entire proceedings. In our opinion, when a Court exercises a jurisdiction not strictly in accordance with the mode prescribed by the statute, the question must necessarily arise as to whether the defect amounts merely to an irregularity or an illegality and the answer must necessarily depend upon the character and the object of the rule which has been contravened. In a case falling under this section it Is patent that the object of the rule requiring the Court to state the grounds of its satisfaction in the Initial order is merely to inform the parties against whom proceedings are sought to be initiated of the reasons which have induced the Court to take action and thus to enable them to put up a proper defence.
If the initial order recorded does not sate these reasons and the party against whom it is directed finds it difficult to prepare his defence by reasons of the vagueness of the order, be can always apply to the Court for the statement of the grounds. On the other hand, if the parties do not feel any difficulty owing to the omission of the grounds and adduce evidence is support of their respective cases, it is difficult to appreciate upon what principle it can be said that the defect in the order amounts to an illegality vitiating the entire proceedings.
' It is not the case of petitioners that in the complaint filed in the Court of Sub-Divisional Magistrate in this case by S. H O. Takht Bhai Police Station the said three elements were missing. But what their learned counsel has argued is that since respondent had not claimed to be in possession of the land in dispute, the learned Magistrate would have no jurisdiction to proceed with inquiry nor to pass the impugned order. This contention of the learned counsel, if I have correctly understood him, seems to be that although he would be unable to object to the initial assumption of jurisdiction in this cue by the learned Magistrate, yet when the parties appeared before him and filed their written statements, he should have declined to proceed with inquiry, for in the written statement respondents had not only disclaimed to be in possession of the property but had styled themselves as servants/agents of Nawabzada, who himself was in actual possession, So far as the legal efficacy of this contention is concerned, it can hardly be questioned. A casual examination of the provisions of section 145, Cr. P. C. Would at once reveal that in enacting it what the Legislature intended to do was to provide speedy machinery with a view to averting any danger to public peace in consequence of any dispute in which each party claimed to be in possession of the subject-matter. However, I have not been able to agree with the interpretation which the learned counsel has placed on the contents of written statement of respondents, as he seems to have read that document only casually.
' In the title of their written statement, respondents have served themselves as agents of Nawabzada. But in paragraph I of it what they have alleged is that as such agents they look after and manage his property, including the one in dispute, subject to his instructions and directions. It would thus be obvious that in the case set up by them they had substantially alleged to be in possession of the land in dispute although in regard to its management they used to be guided by the instructions of Nawabzada. The learned counsel for petitioner, however, relied on paragraphs 7, 3 and 4 of the written-statement and argued that in there respondents have admitted that the land in dispute was Khud.Kasht and in physical possession of their master, namely Nawabzsda, and thus they would have no locus stand to contest the proceedings under section 145, Cr. P. C, ' I am afraid, I have not been able to agree with the learned counsel. It is true that the written statement of respondents has been drafted rather inastistically. But even so, the learned counsel would be unable to take any advantage of that position. A careful perusal of it would show that it has two parts, one consisting of the title, paragraph 1 and the prayer clause and the other of paragraphs 2, 3 and 4 in which has been mentioned the antecedent history of the physical possession of the disputed -land. Now by reading the written statement of respondent as a whole, I am inclined to hold that in the first part of it they had substantially alleged to be in possession of the land in dispute on behalf of Nawabzada, whereas in the second part what they had attempted to do was to show that the land in question had always remained in physical possession of their master. In point of fact, I am supported in this conclusion by the various extracts, filed by them from revenue record for 196f-67, 3967-68, 1970-7l and 1972-73, all of which were later proved by proper evidence. The prayer clause of written statement would also support me in my Conclusion, for in there the relief claimed by respondents was that as agents of Nawabzada, they may be declared to have been in possession of the land in dispute on the date when the complaint under section 145, Cr. P. C. Was filed by S. H.
0. Takht Bhai Police Station as. Also that the petitioners be restrained from interfering with their possession.
' A perusal of the written-statement of petitioners would show that they had not understood the case set up by respondents. In the title of their written-statement, petitioners had 'styled the respondents as Mukhtars of Newabzade. And there is nothing in the operative part of it which would detract from this position. There is no objection in the written-statement that respondents were not looking after the land of Nawabzada as his agents. And thus the conclusion becomes irresistible that the contrary stand taken by them in, the Court of Session was an afterthought.
The object of section 145, Cr. P. C. Appears to me to confer on th class of Magistrates, mentioned therein, the necessary jurisdiction to des with situations of urgent nature in -which dispute likely to cause breach of peace exists concerning any land or water or the boundaries thereof. In other words, the principal object, which the Legislature intended to achieve by this section, is to preserve the peace of society. And although this section appears in Chapters III of the Code of Criminal Procedure, it is substantially in the nature of a civil enactment, A perusal of the section would show that when a Magistrate takes cognisance of a case thereunder, he for all practical purposes is a civil Court inasmuch as if he is satisfied that a dispute likely to cause a breach of peace concerning any land or water of the boundaries thereof, he shall make an order in writing stating grounds of his being so satisfied, and requiring the parties concerned to attend his Court in 'person or by pleader on a specified date and put in written statements of their _respective claims as regard the fact of a possession. The expression in subsection (1) of that section of a written statement is worth noting. And when we proceed to examine the sceond proviso to subsection (4) of it, it empowers him to attach the subject-matter; of dispute until his final decision, if he be of the view that the matter is one of urgency. Subsection (7) of that section provides that if a party to the proceedings dies, the Magistrate may cause his legal representative to be brought on record.
This being the analysis of all these sections appearing in Chapter II/ of the Code of Criminal Procedure, it is clear that while exercising jurisdiction hereunder, a Magistrate would have no power to award punishment to party even it is found by him not to have been in possession of the land in dispute on the target date. In other words, even if he comes to the a conclusion that a party before him had, maliciously, and without an basis, created a dispute with the other party, still all that he would empowered to do under section 145, Cr. P. C. Is to pass an order that the other party was in possession on the target date direct that the 'party, which failed before him, would not interfere with the possession of other side. But in case he is aggrieved, be might establish his right to civil Court.
' Enough has already been said by me in regard to the written state: meets of parties. But the legal effect of the allegations contained therein would require further examination. The proceedings under section 145, Cr. P. C being essentially of civil r ature, it would suffice to restate the well- established legal principle that if a plea has not been taken in the plaint/written statement a party cannot be permitted to lead any evidence in that regard. But if any evidence has been brought on record in that connection, it has to be ignored. The petitioners have not taken any plea in their written D statement that respondents were not, as agents of Nawabzada, in possession of the land in dispute. And thus their evidence on that point (which ev otherwise is inconclusive) has to be ignored. In this vie, the first contention of the learned counsel would have no force and has to be :ejected.
' Even otherwise, this contention would appear to be more technical than real. If the proviiiens of subsection (1) of section 145, Cr. P. C. Are kept ire juxtaposition with rule 1, Order IX, C. P. C., namely: "On the day fixed in the summons for the defendant to appear and answer the parties shall be in attendance at the Curt house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day by the Court."
' It would be seen that the language used in both of them is subteen tially the same. It would, therefore, follow that if a party to civil proceeningo would have the right, which indeed it would nave, to appoint an agent to represent his interests therein, then on principle 1, in my humble ()pillion. Cannot conceive as to why the same right should be denied to a party in proceedings under section 145, Cr. P. C. Which _too are substantially of civil nature. Therefore, assuming for the sake of argument that revandent were not in possession of the land in dtspuie on the target date, still thei would be no objection to the competency of proceedings, for the power of attorney given by them to their advocate was attested by Nawabzada And this would suffice to show that he had appointed them as his agents to protect his interests in the proceedings before the learned Magistrate. Tb avowed object of proceedings under section 148, Cr. P. C. Is to thwart any attempt on the part of disputants to endanger public peace in consequence of a dispute between them in regard to the possession of land or water of 3 the boundaries thereof. And so long as this object is achieved, there would be no objection if an interested party to the proceedings is represented by his agent. For he too would be bound by the order of Magistrate passed therein. I am, therefore, of the opinion that dm' Nawabzada had countersigned the power of attorney given by respondent, to their advocate, he must be deemed to have appointed them as his agents eventually, he would be bound by the order of learned Magistrate, even if has gone against him and consequently the object of section 145, Cr. P. C. Would stand satisfied.
' The learned counsel, however, argued that long before the dispute in question, Nawabzada had sold to his sons' wives a substantial part of the land in dispute and thus he would have no right to appoint respondents as his exclusive agents for the purpose of these proceedings. I am afraid, there is no force in this contention either. A perusal of the written statemen of petitioner would show that in there they had taken no such plea. Audi consequently whatever evidence was brought by them on record on the point will have to be ignored. Even otherwise, the contention has no force, for in proceedings under section 145, Cr. P. C all that a Magistrate is required to ascertain is as to who was in possession of the land in dispute on the target date disregarding in terms of subsection (1) of that section, the claim of any party that it was he who had the right to possession.
In other words, in proceedings under the section even the rights of a trespasser would appear to be protected, unless he is evicted in due course of law. And consequently the contention of learned counsel would be misconceived, if it is found on the record of the case that on target date Nawabzada himself was in possession of all the land in dispute.
' Jamabandi Exh. P. W. 1/D for the year 1970.71 would show that although 966 !Canals and 18 marlas in village Chail was shown to be in the Khud Kasht of the sons and wives of Nawabzada, but it is mentioned therein that they were in Khud Kasht through respondent Shamsuddin. It would, therefore, be obvious that this circumstance by itself would convincingly corroborate the case of Shamsuddin that he was, on the target date, in possession of the land in dispute. But if, any further proof is required in support of this conclusion, referenoe-may is mule with advantage to the extracts from revenue record, namely, R. W-1/A. R. W-1/B and R. W-1/C, produced by him in his evidence. A perusal of these documents, which are in the nature of Khasra Girdawaris and.
Jarnabandi, would show that long before the parties fell out with each other, possession of the land in dispute had been recorded in the name of Nawabzada, his three sons (who according to the evidence on record are still studying in the various institutions at Lahore) his two wives and a third lady who from the available evidence, cannot be identified. But the land itself used to be looked after by respondents subject to the directions and control of Nawabzada. In this view and in the light of other evidence on record, I am inclined to agree with the conclusion of the two Courts below that the entire land in dispute was notwithstanding the fact that a substantial part of it had been transferred by Nawabzada to these various persons, in his (Nawabaada's) actual possession, and thus he would have every right to appoint respondents as his agents. After all, his three sons and two wives would, in the scheme of things, be unable to look after their share of the land in dispute, as according to the evidence the sons were still pursuing their studies in the various institutions at Lahore, whereas in the presence of their husbands the two wives could not possibly be looking after their own land. In other words, notwithstanding the entries in Bah. R. W-1/A, Exh. R.
W-1/D, the actual possession of the land-in dispute was with Nawabaada on the target date, and thus there would be no objection to his appointing respondents as agents who too, according to the evidence on record, were looking after the land in question for Nawabaada. I am, therefore, of the view that the two Courts below were, in view of the evidence on record, entirely justified to hold that respondents were in possession of the land in dispute on the target date, for this is precisely what was required of them to ascertain in the proceedings instituted before them under section 145 of the Code of Criminal Procedure.
' The learned counsel had, in support of his contentions, referred to quite a few judgments from the High Courts of Indian sub-Continent. But since one of the parties to the dispute in those cases was either a servant of the party in actual possession or having no authority to represent the said party's Interests in the case before Magistrate, those judgments would be distinguishable and would not avail him. The one each judgment rolled upon by him is from Dacca High Court in the case of Aposh All v. Alma All Bhuiya (1). But it too has no relevancy to the facts of this case. In that case. Aposh All had instituted proceedings in the Court of Magistrate, under section 145, Cr. P. C.
Against the opposite party saying therein that he was a peon of the father of Sailendra Nath Chakraborty who himself was in possession of the land in dispute. In view of the evidence on record, however, the Court came to the conclusion that in the proceedings instituted by Aposh Ali, no mention was made by him of the name of Sailendra Nath Chakraborty, nor had the latter empowered him to represent his interests in those proceedings. It was in this background that the Court was persuaded to accept the reference made to it by the learned Sessions Judge that the entire proceedings under section 145, Cr. P. C. Were Incompetent. But I do not see as to how this judgment would help the learned counsel, for in the case in hand, respondents had not only claimed to be in possession of the disputed property on the target date, but Nawabtada had, by countersigning the power of attorney given by them to their advocate, appointed them as his agents to represent his interests in the proceedings.
' So far as the second contention of the learned counsel is concerned, it is also without force. A perusal of the powder of-attorney (Ezh. R. W-D/1) given by petitioners to their attorneys, namely, Asian Khan and Fatal Khan, would show that they had been fully empowered to represent their Interest in the proceedings, to file affidavits, to engage advocates and to do all such things which the nature of proceedings would require. It is in evidence that Oskar Khan appeared as witness in the proceedings for himself as well as petitioners and also produced other witnesses and documents. Evidently, therefore, it would be too late in the day to contend that petitioners were prejudiced or that the learned Sessions Judge was wrong in dismissing their application for additional evidence.
' As regards the merits of the case, the learned counsel was unable to show anything from record that the finding of the two Courts below against the petitioners was in any way illegal. In point of fact, the Courts below have considered all the available evidence with considerable care and thus there would be no scope to interfere with their finding. Assuming for the sake of argument, however, that the oral evidence of parties would be self-serving and should, therefore, be ignored, even then according to the revenue record extending over the antecedent period of 15/16 years, the land in dispute has been recorded in the Khud Kasht of respondents and this would be sufficient to sustain the impugned judgment. It is well-settled that in the absence of any other evidence, possession would follow title. And assuming that there was no other evidence in this case, possession of the land in dispute must be held to have been with respondents on the target date for according to the revenue record, they were owners in possession. In these circumstances, the orders of the two Courts below would appear to be not only legal but entirety reasonable with which this Court, exercising revisional jurisdiction, would not lightly interfere.
' This brings me to the case of Ahmad Saeed petitioner which seems to be different from the case of other petitioners. It is in the evidence of Patwari Ali Bahadur that according to Khasra Girdawari for Rabi 1973 Ahmad Saeed Is in possession of 30 kanals of land. But in Khasra Girdawari for Kharif 1973 only 6 'canals of land was shown to be in his possession. {{FOOT NOTE}} (0 PLD 1958 Dacca 413 {{FOOT NOTE}} Quite apart from the fact Khasra Girdawari by itself has no evidentiary value. Ali Bahadur did not place on record of the case even a copy of the Kimura Girdawari of Kharif 1973. And the reason given by him for that omission appears to be unconvincing. His evidence is that the entry in Khasra Girdawari for Rabi 1973 was incorrect and when he discovered that position, he rectified it in the subsequent Khasra Girdawari for Kharif 1973. However, in answer to a question if anyone had made an application before him for that purpose, he replied in negative just as in answer to another question whether he can produce a copy of corrected Girdawari, he replied that he would be unable to do so because the period of limitation for an application had not yet expired. As if all this was not enough, he admitted that while preparing the Khasra Girdawari in question, he had made no inquiries as to who was in actual possession of the land or who had cultivated it. And this would be sufficient to vitiate the finding of the two Courts below on the point. The oral evidence of Ahmad Saeed appears to be rather convincing that actually he was in possession of the land in dispute on the target date. And in that regard the revenue record would support him. The fact that in Khasra Girdawari for Rabi 1973 Ahmad Saeed was shown to be in possession of 30 kanals of land would be sufficient to lead one to the conclusion that the status quo had cotinued and the absence of any evidence on record, the subsequent Khasra Girdawari for Kharif 1973 could not possibly bring about any change in that situation. It must be noted that both these Khasra Girdawaris were prepared by Ali Bahadur Patwari and yet he was unable to explain as to how the Khasra Girdawari prepared by him for Rabi 1973 was incorrect. In this view, coupled with the fact that the rest of his evidence in entirely unconvincing, there is no option for me but to disagree with the two Courts below in regard to the claim of Ahmad Sassed petitioner and to that extent their finding will have to be set aside.
' In view of this rather lengthy discussion, this revision application, except for the case of Ahmad Saeed petitioner, has no force and is dismissed. But in the case of Ahmad Saeed it is allowed. The result would be that possession of 80 kanals of land would be restored to him by the learned trial Magistrate and respondents would be restrained from interfering with his possession unless he is evicted in due course of law.
' As a necessary consequence of this order, S. H. O. Takht Bhai Police Station who, by common consent of the parties, had been appointed as receiver of the land in dispute, would stand discharged. He would accordingly hand over possession of the property in dispute to respondents, except for 30 kanals of land the possession of which he would hand over to Ahmad Saeed petitioner subject of course, to his other obligations of accounting to the parties in regard to usufruct or other benefits derived from the property during the time that he acted as receiver.
1978 P Cr. L J [Karachi] Before Z. A. Channa and G. M. Shah, JJ SADH-Appellant versus THE STATE-Respondent Criminal Appeal No, 147 and Confirmation ,Case No, 23 of 1976, decided on 31st October 1977.
(a) Evidence Act (I of 1872)- -- S. 105 and Penal Code (XLV of 1860), Chap. 1V-General exceptions -Burden of proof-Burden of proving existence of circumstances bringing a case within any of general or special exceptions of Penal Code-Lies on accused.-[Exception-Burden of proof]. [p. 447]A Safdar AU v. Crown PLD 1953 FC.93 rel.
(b) Paid Cede (XLV of 18f11)- -- S. 300, Exception I-Grave and sudden provocation, plea of-Deceased, a real sister of accused, shot dead by him for having been found In a compromising position with her paramour-Conviction altered to one under S. 304, Part (I), in circumstances.-[Grave and sudden provocation]. [p. 447]B Muhammad Sctkh v. State P LID 1965 SC 366 rel. Muhammad Hayes Josef for Appellant.
Syed Nasiruddm for A.-0. (Sind) for the State.
Date of hearing : 31st October 1977.
' Z. A. CHANNA , J.-Appellant Sadh, a 20 years old grazier, has been convicted by the learned Sessions Judge, Khairpur, by his judgment delivered on 14.6-1976, for committing the murder of his sister, Mst. Rani, and has been sentenced for the said offence to death. He has also been convicted under section 13 (d) of the Arms Ordinance for being in possession of the unlicensed revolver and has been sentenced for the same to R. I. For one year. The appellant has appealed against his convictions and sentences and the learned Sessions Judge has also referred the case of the appellant to us for confirmation of the death sentence awarded to him. This judgment will dispose of both the appeal and the reference.
2. The murder of Mst. Rani was committed on the night intervening between the 27th and 28th May 1975 at some time after midnight, while the F. I. R. Of the crime was lodged, early in the morning, at 5-30 a.m., at Ahmedpur Police Station, which is at a distance of about 9 miles from the scene of offence. According to the version stated in the F. R., first informant La) Bakhsh was sleeping outside his house, in village Fatul Ghumro, while the deceased, Mst. Rani, was sleeping at some distance away from him, when at some time after midnight, the first informant woke up on hearing a gunshot and saw the appellant standing by the side of the cost of the deceased, who had been married to the first informant's brother and who was absent from the house on the night of the incident. It is alleged that on the cries of the first informant and the fire shot, Dilawar, the cousin of the complainant, and Muhammad Alam, the brother of the complainant's wife, came running and they too saw the appellant standing by the side of the cost of the deceased with a revolver in his hand. According to them, the appellant warned them not to come near him as he had murdered his sister as she was a Kari. The appellant is said to have then left the place. The witness found that Mst. Rani had been hit in the chest and she succumbed to this injury within a short while.
3. The investigations in this case were conducted by S. H.
0. Muhammad Younus. He accompanied the first informant to the scene of offence, where he recorded the statements of Muhammad Alam and Dilawar. He also sent the dead body of Mst. Rani to the Civil Hospital at Kbairpur for post-mortem examination. On the same day, Muhammad Alam and other P. Ws. Produced the appellant before the S. H.
0. The S. H.
0. Recovered a revolver from the possession" of the appellant. The revolver contained 5 live bullets and one spent shell of a bullet. On 30th May 1975, the appellant was produced before Mr. Rajab Ali, Civil Judge and F. C. M., Khairpur, who recorded his judicial contusion on the same date.
4. The autopsy on the deceased was conducted by Dr. Gul Muhammad, according to whom the following external injury was found on the person of the deceased: "Lacerated fire-arm wound 1' x 3' deep right lumbar region posteriorily."
5. On internal examination, the doctor found the abdominal arota, the mesentric vessels and the kidneys ruptured and perforation in the ascending colon. The internal damage, according to the Medical Officer, was the result of the fire-arm injury sustained by the decased. The Medical Officer has opined that the injuries on the deceased were sufficient In the ordinary course of nature to cause death.
6. The appellant, in his statement to Court under section 342, Cr. P. C. Has admitted to have killed the deceased by means of a revolver shot and to have produced the revolver before the police. He has, however, taken the plea of grave and sudden provocation and stated as follows t- 9 have not committed the murder intentionally, but I have killed my sister due to 'Ghairat' under grave and sudden provocation as I saw her in objectionable condition with Pinjal Shah on the same cot at night time. Therefore, I lost my control and killed her due to 'Gbairat'."
7. There is no doubt, on the evidence on record, that the appellant killed the deceased by means of a revolver shot. The prosecution have examined three eye-witnesses on this point, namely, first informant Lal Bakhsb, Dilawar and Alam. Although none of them actually saw the revolver shot being fired by the appellant at the deceased, first informant Lal Bakhsh noticed the presence of the appellant with the revolver at the scene of offence immediately after the shot was fired, while P. Ws.
Dilawar and Muhammad Alam, who came rushing from the neighbouring houses, likewise saw the appellant standing witn a revolver by the side of the cost of the deceased. All these 3 witnesses have stated that the appellant was shouting that he had killed the deceased.
8, In addition to the evidence of the above 3 witnesses, whose testimony in regard to the factum of the killing has not been challenged, there is the judicial confession made by the appellant within two days of the incident before the Civil Judge and F. C. M., Khairpur. In that confession also the appellant has admitted to have killed the deceased by means of a revolver shot. The appellant has admitted to have made that confession and further conceded that it was true and voluntary.
9. Lastly, there is evidence of S. H.
0. Muhammad Young that the appellant bad produced before him a revolver containing 5 live bullets and one spent shell of a bullet. The S. H.
0. Is supported by mashir Muhammad Alam. As already stated the appellant himself has admitted in Court to having killed the deceased.
10. The important question, however, which falls for consideration is whether the act of the appellant in killing the deceased amounts to murder.
11. All the 3 eye-witnesses to the incident have stated that immediately after killing the deceased, the appellant was shouting that he had killed the deceased as she was Kari with one Panjal Shah.
Even in his confession, the appellant has stated that he killed the deceased because she was on illicit terms with Panjal Shah. Tho deceased was the real sister of the appellant and it is unthinkable that he would have killed her unless he had an overpowering motive for doing so. The Supreme Court, in the case of Muhammad Saleh v. State (1) has recognised the right of the male members of a family under village conditions, and even in many other parts of the society in our country, to control the actions of their women folk, particularly in the field of sexual relations. The evidence on the record clearly shows that the appellant strongly suspected Mst. Rani of maintaining illicit relations with Panjal Shah. The infidelity of Mst. Rani is also tacitly conceded by the eye-witnesses.
This, however, would not be sufficient for bringing the case of the appellant under the first exception to section 300, P. P. C. Unless there is evidence on record to show that the appellant saw Mst. Rani in compromising position with Panjal Shah or in such ciraum-stances with him that he must be presumed to have lost his self-control and to have acted in consequence of grave and sudden provocation.
12. Mr. Muhammad Hayal Junejo, the learned connsel for the appellant, has referred us to the evidence of the eye-witnesses, from which he wants us to infer that the presence of Panjal Shah immediately before the killing of Mst. Rani can legitimately be presumed. The first piece of evidence to which be learned counsel drew our attention was the admission made by P. W. Dilawar in the lower Court, with which he was properly confronted at the trial, that at the very time of the incident, the appellant had stated that he had killed the Karl, Mst. Rani, while the Karo, Panjal Shah, had managed to escape. The learned counsel also referred us to the evidence of P. W. Muhammad Alam whose evidence is similar, namely, that the appellant on the very spot had stated that the Karo Panjal Shah had run away. The moat important piece of evidence, on which the learned counsel relied upon, was the statement of Muhammad Alam that while coming to the house of the first informant, he had seen a man running away from the complainant's house. The witness, however, stated that because of darkness he had not been able to identify the man who was running away. The learned counsel sutmitted, and not without reason, that this person could only have been the Karo Panjal Shah. P. W. Muhammad Alam is apparently not related to the appellant and, therefore, there appears to be no reason why he should make obliging admission in his favour.
If, in fact, he had wanted to oblige the appellant, he could easily have stated that the person running away was Panjal Shah, but he seems to have truthfully stated that the man whom he saw running away could not be identified by him. We consider that P. W. Muhammad Alam is a truthful witness. {{FOOT NOTE}} (1)PLD 1966SC 366 {{FOOT NOTE}}
13. The learned Sessions Judge did not accept the contention of the appellant that Panjal Shah was seen by the appellant in a compromising position with the deceased and accepted the evidence of the first Informant that Panjal Shah had migrated from the village a week prior to the incident.
The evidence as to the alleged migration of Panjal Shah is conflicting, for while the first informant, Lal Bakhsh, states that he had migrated a week prior to the incident, P. W. Dilawar has testified that he had migrated a month prior to the incident nd P. W. Muhammad Alam stated that he had migrated on the day of the incident, which could possibly be after the incident itself. The fact that Panjal Shah had not only migrated from village but even sold his lands before migration, as admitted by P. W. Muhammad Alam, lends further support to the view that he was on illicit terms with the deceased. The evidence of Muhammad Alam and Dilawar further seems to suggest the presence of Panjal Shah at the scene of offence immediately before the killing of the deceased.
Even in his confession, which has been accepted by the learned Sessions Judge to be true, the appellant has referred to the presence of Panjal Shah and his managing to escape from the scene of offence. We have seen the appellant in Court and find that he is lame and disables from one leg.
He can only manage to hobble at a slow peace. In the circumstances, it could not have been difficult if Panjal Shah was present at the scene of offence, for him to have, noticed the coming of the appellant and to have managed to escape from him.
14. It is true that under section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Pakistan Penal Code, or within any special A exception in the said Code, is upon the accused, yet that burden is not a very strong one. In Safar All v. Crown (1), the question of the scope of section 105 of the Evidence Act came up for consideration. In that case Chief Justice Abdul Rashid observed as follows.
"In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence, If, after an examination of the while evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt."
15. On a careful examination of the entire evidence in the case, we are of the view that there does appear to be a reasonable possibility of the presence of Panful Shai at the scene of offence at the relevant time. The evidence on this point has not been rebutted by the prosecution. Even if we were to assume that Panful Shah had migrated before the incident from the village of the first informant, there is nothing to suggest that it was impossible or even difficult for him from the place to which he had migrated to come to the house of the deceased, since we do not know the distance between his place of migration and the house of the deceased. We have also taken note of the fact that the deceased was pregnant, but this circumstance, In our view, would not eliminate the reasonable possibility of the deceased's attempting to have sexual relation with Panjal Shah, as according to the medical evidence, her pregnancy was only 5 months old. In the circumstances, we are of the view that the case of the appellant reasonably falls within {{FOOT NOTE}}
(1) PLD 1953 P C 93 {{FOOT NOTE}} Exception I to section 300, P. P. C. For undoubtedly he must have been gravely provoked at seeing the paramour with the deceased at dead of night. This provocation also was undoubtedly a sudden one, despite the fact that he possibly had previous suspicion of the infidelity of his sister.
Suspicion as to infidelity is, however, one thing but actually seeing a female relation in a compromising position with the paramour is a totally different circumstance, and in our, society would certainly give rise to strong and sudden feeling for wiping out the stain on the family honour.
16. For the reasons stated above, we would give the benefit of exception I to section 300, P. P. C. To the appellant and alter his conviction and sentence from death under section 302, P. P. C. To five years' R. I. Under section 304, Part I, P. P. C. The reference for the confirmation of the death sentence is, in the circumstances, rejected. The learned counsel for the appellant did not challenge the appellant's conviction and sentence under section 13 (d) of the Arms Ordinance. We would accordingly maintain the same but direct that the said sentence should run concurrently with the sentence which has been substituted for the death sentence awarded to the appellant.