SIRAJ DIN Versus ZAKA-UR-REHMAN

In a case under sections 324, 452/34, P.P.C. registered at the instance of Siraj Din petitioner, the police challaned Zaka-ur-Rehman, Zia-ur-Rehman and Haqnawaz accused. The challan was filed in the Court of Rao Tehseen Ahmad Tehseen, Magistrate 1st Class, Sheikhupura, who on 2-5-1983, formally charged them with the offence under section 324/34, P.P.C. The accused after framing of the charge filed an application under section 249-A, Cr.P.C. seeking their acquittal. A notice of this application was given to the State .for 15-5-1983. The learned Magistrate vide the order, dated 26-5-1983 accepted this application and acquitted the accused. In paragraph 7 of his judgment, the learned Magistrate held firstly that 'the report under section 173, Cr.P.C. clearly indicates that the matter relating to the occurrence was of doubtful nature'. Secondly, that 'the F.I.R. was lodged after about 20 hours of the occurrence which has not been explained satisfactorily by the complainant in a statement before the police'. Thirdly, that 'a perusal of medico-legal certificate reveals that injury No. 1 was received by the complainant on the back of right fore-arm. Had the blow with Chhuci been given, it could have fallen on the inner side either on the fingers, palm or on the inner side of right wrist. The injury No. 2 which is a swelling only could be caused due to fall and it could safely be presumed that it was not inflicted by Sota or Dang' and fourthly, that 'for the reasons given above I am of the considered view that it is not a fit case to be proceeded with even at this stage and I entirely agree with the arguments of the learned defence counsel that decision can be given without recording evidence against the accused'. The accused were acquitted. Siraj Din petitioner challenged the order of acquittal through revision before learned Additional Sessions Judge, Sheikhupura who vide the order, dated 5-11-1983 dismissed the same.

2. I have heard the learned counsel appearing on behalf of the parties and have also examined all the documents which form part of this petition.

3. The learned Additional Advocate-General has supported this constitutional petition. He expressed the view that the two impugned orders dated 26-5-1983 and 5-11-1983 cannot be supported or upheld.

4. The learned counsel appearing on behalf of the three accused respondents mainly addressed arguments on the scope of constitutional jurisdiction of this Court in such like matters. The learned counsel appearing on behalf of the parties cited 1972 S C M R 395; 1986 r Cr. L J 1684; P L D 1981 SC 246; P L D 1974 SC 139; P L D 1977 Kar. 168; P L D 1985 SC 131; P L D 1979 BJ 12; 1985 P Cr. L J 418 and 1985 P Cr. L J 1175 in support of their respective contentions. I have carefully gone through all the judgments cited at the bar. There cannot be any second opinion on the law laid down in these judgments. In my view the two impugned judgments cannot be upheld, firstly because the learned trial Magistrate acquitted the accused on merits without recording any evidence. Secondly, he took into consideration the medical evidence without recording the statement of medical officer. The medico-legal certificate required formal proof and could not have been considered without the statement of the medical officer. Thirdly, the learned Magistrate took into consideration delay, of 20 hours in lodging the F.I.R. without examining. Siraj Din complainant as witness during the trial and finally that the case against the three accused was not a case of no evidence. The prosecution case was supported not only by the injured but also bye the eye-witnesses and the medical evidence. Moreover, the finding of the learned Magistrate that the report under section 173, Cr.P.C. makes the case against the accused doubtful is based on misreading of the said document. The three accused were challaned under section A 3':-1/34, P.P.C. They were not found innocent during investigation. Their names were mentioned in column No. 4 of the challan. Mere fact that section 452 was deleted by the police after investigation would not mean that the case against them was in any manner doubtful. The learned Magistrate acquitted the accused without recording evidence, in excess of its jurisdiction. He had no authority to acquit the accused without recording evidence and without following due process of law. In view of these circumstances the revisional order was also not legal.

In view of the above discussion judgment, dated 16-5-1983 passed by the Magistrate 1st Class, Sheikhupura and the revisional order, dated 5-11-1983 are declared to have been passed without lawful authority, in excess of jurisdiction and void. The two order are accordingly set aside. The challan in case F.I.R. No. 409, dated 24-8-1982 under section 324/34, P.P.C. Police Station Sadar, Sheikhupura against respondents Nos. 1 to 3 is sent to the Court of Sessions Judge, Sheikhupura who will entrust the same for tria according to law to a Magistrate of competent jurisdiction.

S.G.D./S-19/L ???????????????????????????????????????????????????????????????????????? Order accordingly.