' On the night between 30-6-1965 and 1-7-1965, Mst. Ulfat Bibi was murdered by firearm. On 1st of July, 1965, Karam Elahi (P. W. 1) husband of the deceased lodged an F. I. R. At Police Station Gunjial under section 302/34, P. P. C. Wherein he inculpated Ghulam Muhammad, Jahana and Shah Muhammad. The Investigation revealed that four other persons, namely, Asghar Ali Shah, Gulzar Muhammad, Bashir Shah and Shadi Shah were also involved in the case. The Police sent in challan against the latter four persons and placed the former three persons in Column No.
2. Aggrieved by this, Karam Elahi filed a complaint against the accused named in the F. I. R. The learned Magistrate conducted proceedings in the challan and the complaint case simultaneously, and on 29th of July, 1971, passed an order committing all the seven accused persons to stand theft trial in the Court of Session. He recorded the evidence of 30 witnesses.
2. This petition under section 561-A, Cr. P. C. Read with section 215 has been filed by the accused in the challan case only for quashment of commitment proceedings against them. It may be mentioned that during the pendency of this petition, the aforesaid accused were committed on 29th of July, 1971.
3. The learned counsel appearing for the petitioners has raised the following contentions :- It is only in his second statement that approver, Abdul (P. W. 3) inculpated the petitioners. The second statement was made a year and a half after the making of the first statement. He relied on Ch. Zafarul Haq v. The State (1) to show that under these circumstances no reliance can be placed on such statement. The language of section 133 of the Evidence Act would not be applicable in the case of a second inculpatory statement and there is no corroboration of recovery since the recovery witnesses did not support the prosecution case. {{FOOT NOTE}}
(1) PLD 1968 Lah. 437 {{FOOT NOTE}}
4. None of the above grounds are sufficient to quash the proceedings pending against the petitioners and acceptance of such petition would result in an unjustified dichotomy. The ratio of the above case was laid down in an appeal case whereas the standards applicable in quashment proceedings are entirely different. After the amendment of the Code of Criminal Procedure section 215 is no longer available. Anyhow, after the amendment in the Code of Criminal Procedure, it is squarely the duty of the Sessions Judge to determine the guilt or innocence of the accused persons. This Court acting under section 561-A, Cr. P. C. Cannot axe criminal prosecution. This petition is, therefore, dismissed.