BASHIR AHMAD Versus STATE
Bashir Ahmad wars accused of having committed culpable homicide not amounting to murder under section 304, P. P. C. by firing at Ayaz Shah, as a result of which he died and also for firing at Manzoor Hussain P. W. with such intention or knowledge that if he had died by his act he would have been guilty of culpable, homicide not amounting to murder, on the 25th of January 1966, at 11‑30 a.m. in the area of village Kala Gujran, District Jhelum. The Additional District Magis trate, Jhelum, tried and convicted him under section 304(11), P. P. C., and sentenced him R. I. for four years. He also held him guilty under section 308, P. P. C. and sentenced him R. I. for two years. Both the sentences were ordered to run concurrently. The convict appeals against his convictions and sentences through Kh. Sarfraz Ahmad, Advocate. The appeal was admitted to hearing on the 19th of July 1967, by Mr. Justice S. A. Mahmood (as he then was).
2. On the 13th of June 1968, the appeal came up for hearing before my learned brother My A. Zullah, J., who after reading the judgment of the trial Magistrate dated the 19th of June 1967, made the following observations:‑
(i) that the learned Magistrate disbelieved the defence version of total denial in this case ;
(ii) that the learned Magistrate did not allow the benefit of accidental firing to the appellant. In fact, the argument advanced in favour of the appellant in respect of a sentence appearing in the F. I. R. to that effect, was repelled by the learned Magistrate by his observation that that portion of F. I. R." was not put to Manzoor Hussain in cross-examination. Therefore, he did not consider it proper to give any benefit of that aspect of the case to the appellant;
(iii) that the learned Magistrate believed the eye‑witnesses whose version at the trial was that the appellant `had aimed at them and they had requested him not to fire but still he (the accused) fired' ; and
(iv) that the learned Magistrate did not discuss at all as to why it was not a case of section 302, P. P. C. and bow it fell under section 304, Part Il, P. P. C.
The learned Judge further observed:‑
"Two questions arise in this case, namely, whether or not the accused should have been tried for an offence under section 302, P. P. C. and whether or not the Magistrate, in view of the circumstances explained above, should not have committed the accused for trial to the Court of Sessions and should have left to that Court, the question of decision as to whether the matter fell under section 302, P. P. C. or section 304, Part II, P. P. C.
He further observed:‑
"I feel that if the findings of the learned Magistrate stand, as they are, he should not have decided the case and should have committed the accused for trial to the Court of Session, because it is only the Sessions Judge who is to determine whether in such circumstances this case falls under section 302, P. P. C. or section 304, Part II, P. P. C."
In view of these observations the learned Judge issued notice suo motu to the appellant to show cause why the order of the Additional District Magistrate, Jhelum, should not be set aside and why he should not be committed and tried under sections 302 and 307, P. P. C. After the service of the notice on the appellant the case was laid before me. This judgment will dispose of Criminal Appeal No. 461 of 1967 and Criminal Revision No. 576 of 1968.
3. I have heard the learned counsel on behalf of the appellant at some length and have perused the evidence recorded by the trial Magistrate. I need' not repeat the points which have been taken notice of by my learned brother M. A. Zullah, J. and have been reproduced above. I do not propose to express any opinion on the merits of the case, as I am sending back the case to the Committing Magistrate to be duly com mitted for trial to the Court of Session in accordance with law. The case is one of death by violence, and under section 209, Cr. P. C., a Magistrate holding the inquiry should take care and see that he does not trespass into the province of the Sessions Court, which alone can try the case. The case in hand is one where the learned Magistrate should have committed the accused to trial and should not have decided A the questions of fact and of law upon which the prosecution and the defence were at issue and the decision upon such issues could only be reached by a Sessions Court. In Hari Ballav Shaha Roy v. Gopi Ballav Shaha and another (P L D 1959 S C (Pak.) 347) their Lordships observed:‑
"A Magistrate holding the preliminary enquiry has power to sift and wiegh evidence only for the purpose of determin ing whether or not it is a fit case for committal and not for deciding about the guilty of the accused. No hard and fast rules can be laid down regarding the distinction to be made between the duty of a committing Magistrate and that of the Sessions Court,' but the test is a safe guide view that if there is on the evidence even a possibility of conviction the accused should be committed for trial though the Magistrate thinks that a conviction is not probable or the matter is not free from doubt, but that he should discharge the accused if on‑ the evidence he comps to the conclusion that no Court or jury could reasonably be expected to convict the accused."
4. For these reasons, and although it is now two years and nine months since the commission of the said crime I feel obliged to set aside the convictions and the sentences passed upon the appellant by the Additional District Magistrate by his order dated the 19th of June 1967, so that Justice may be done by a competent Court in the case. I direct that the case should be sent back to the Court of Assistant Commissioner, Jhelum, to be duly committed for trial at Session in accordance with law.
The case is an old one, but the charge against the accused is pretty serious. Therefore, I am not admitting him to bail. As such I direct the Assistant Commissioner to commit this case within a period of fortnight of the communication of this order. The learned Sessions Judge will give preference to this case over the others and will (sic) month after his commitment.
5. Before parting with this judgment, I would say that in all the circumstances, it would be proper that the Magis trate should be the person other than Ch. Talib Hussain, whose order show that he has firm conviction as to the facts of the case which may militate against his taking a balanced view of his function in respect of the case.
Case remanded.