This revision petition under section 439/561 (A) of the Criminal Procedure Code is directed against the order dated 17th September 1975 passed by the District Magistrate, Quetta, whereby he had set aside an order of discharge of the applicant, made by the Honorary and Special Magistrate on 4th June, 1975.
2. The facts leading to this revision petition are that Haji Mohammad Rafiq the respondent No. 2 had rented out a Hotel named Allah Walla situated on Jmnah Road, Quetta to the petitioner Haji Wali Mohammad. On 1st March 1973 Haji Mohammad Rafiq complained to the Superintendent of Police, Quetta alleging that the petitioners were trying to trespass on his open piece of plot adjacent to the rented Hotel. In order to achieve their object, Haji Wali Mohammad had dismantled a wall of the plot and had cut its fruit trees. The Superintendent of police referred the complaint to S. H. O. Quaidabad Police Station for action. The S. H. O. Recorded the First Information Report for offences under section 427-447/34, P. P. C. Against the two petitioners. After usual investigation, the Police challaned the petitioners in the Court of Extra Assistant Commissioner and First Class Magistrate-I Quetta. Later on the case was transferred to the Honorary and Special Magistrate First Class for disposal according to law. Before the trial Court, the prosecution examined Haji Mohammad Rafiq, Habib Ellahi, Fair Mohammad and Ghulam A.I. Two prosecution witnesses M.
Parvez Zahoor Sub-Inspector Gwalmandi, who had recorded the F. I. R. And M. Mohammad Nawaz A. S. I. The Investigating Officer, were given up. Prosecution witnesses Habib Ellahi, Faiz Mohammad and Ghulam A.I did not support the prosecution. However before the decision of the case was given, the complainant requested for leading additional evidence. The Magistrate conceded to his request. But inspite of several opportunities, the complainant failed to adduce additional evidence.
As the case had lingered on for last 26 months the three witnesses had not supported the prosecution case and the evidence of formal witnesses would have not improved the prosecution case, the Magistrate discharged the petitioners under section 253 of the Criminal Procedure Code.
Being aggrieved against the order, com--plainant moved the District Magistrate for setting aside the discharge order. District Magistrate under revisional jurisdiction reversed the order of the Magistrate and accepted the revision on the ground that the complainant/ applicant was not afforded opportunity of leading further evidence in support of his complaint and the petitioners were discharged in good haste. Aggrieved against this order the petitioners have filed this revision petition.
3. Mr. S. H. Jaffry, the learned counsel for the petitioners vehemently argued that the trial Court had given full opportunity to the complainant for adducing additional evidence, but he has failed to do so. As such the finding of the District Magistrate that the Magistrate had not afforded opportunity to the complainant to adduce additional evidence in support of his complaint is baseless. The learned counsel strenuously stressed that the three prosecution witnesses had not supported the prosecution, as such the discharge order was proper and it did not suffer from any infirmity. He maintained that the order of the District Magistrate setting aside discharge order was unwarranted and against the spirit of the provisions of section 253/436 of the Criminal Procedure Code.
4. Mr. R. H. Siddiqui the learned counsel for the State repudiating the contentions of Mr. S. H. Jaffry submitted that the District Magistrate had ample powers under section 435/436 of Criminal Procedure Code to set aside the discharge order. He maintained that the order did not suffer from perversity.
5. In light of the arguments advanced by the learned counsels it is to be seen whether the trial Court was justified in passing the discharge order or not. Section 253 of the Criminal Procedure Code envisages that if upon taking on evidence referred to in section 252 and making such examination of any of the accused, as the Magistrate thinks necessary, finds that no case against accused has been made out, which if unrebutted would warrant his conviction, the Magistrate shall discharge him.
6. In the instant case, the learned Magistrate had recorded the evidence of the four prosecution witnesses. Amongst whom three material witnesses had not supported the complaint. The Magistrate after examining the witnesses afforded an opportunity to the complainant to adduce additional evidence even after close of prosecution case. Inspite of that the complainant failed to do so. `The Magistrate had no other alternative but to pass the discharge order.
7. In case Shashi Kumar Dey v. Krishna Kumar Dey (1969 P Cr. L J 288) the proposition regarding the adequate opportunity for producing witnesses was discussed and it was observed that "Inspite of opportunities given to the complainant, he failed to afford of it and the discharge order was upheld." Revisional Jurisdiction under the Criminal Procedure Code is an extraordinary jurisdic-- petition which could be used sparingly and in exceptional cases. It could be used particularly in cases where the order of discharge is perverse, or there is misreading or mis-appreciation of evidence or where there is a clear defect I in proceedings whereby a great miscarriage of justice is done to a party. Then alone the order could be interfered with otherwise not. In Muhammad Sharif and 3 others v. The State (PLD 1971 Lab. 57) it was held :--- "I am of the considered view that the order bf the trial Magistrate is neither perverse nor foolish and can be maintained on the material that has already been brought on the record."
8. In the end, Mr. Siddiqui half heartedly argued that if an opportunity is given to the prosecution, some further evidence may be adduced against the petitioners. It is a fallacious stand. In case of Mangilal v. State (AIR 1957 Raj. 365) it was held:---- "This Court will not at all be justified in interfering with the order of discharge simply upon the ground that probably some further evidence might be coming forward if the order of discharge is set aside and the case is sent back for further inquiry. The party who wants to have the order of discharge set aside should be able to point out definitely as to what is the further evidence which will be helpful in making out a prima facie case against the accused who has been discharged."
9. Moreover Mr. Siddiqui has failed to satisfy me definitely as to what the further evidence would be collected against the petitioners to make out a prima facie case against them. Evidence of the two formal witnesses, in no way would strengthen the prosecution case. If some other witness, whose names did not appear in F. I. R. Or whose names were not disclosed in deposition of the examined witnesses were examined, their evidence would not improve the prosecution case.
10. In view of the facts discussed above, I am of the clear opinion that the order of the lower Court did not suffer from any infirmity. The order of the District Magistrate is not based on sound footing and cannot be maintained. In view of the circumstances the order of the District Magistrate is set aside and the discharge order of the trial Court is maintained.
This order shall constitute the detailed reasoning for my short order dated 9th March, 1978.