P L D 1965 (W (PLP)

(4) All Commissioners of the Divisions. (5) All Deputy Commissioners/Political Agents. (6) The Registrar High Court, West Pakistan. Subject.‑Threat to officials by members of National/Provincial Assembly. I am directed to say that it was mentioned in one c Governor's meetings that some members of Opposition in the National and Provincial Assemblies were trying to obtain favours from Government officers by threatening them that if those favours were not granted they would .ask questions in the Assembly am, therefore, to request that if any such case comes to notice it should promptly be reported to the Government would take necessary action in the matter. Kindly acknowledge receipt. Yours obediently, (Sd.) S. S. Khan, C.S.P. Deputy Secretary, for Chief Secretary to Government West Pakistan. No. S. VIII‑4‑2/63 (SC), dated 31st August, 1963. A copy is forwarded to all Deputy Secretaries in Se and General Administration Department for information necessary action. Its receipt may kindly be issued. (Sd.) S. S. Khan, C. S. P. for Chief Secretary to Government of West Pakistan. The said Circular became subject of a privilege motion the National Assembly as also in the Provincial Assembly. matter was also taken un by the Privilege Committee of the Pakistan Assembly, and the Chief Secretary appeared as witness before the Committee. Under subsection (2) of section 3 of the West Pakistan Maintenance of Public Order Orddiliance, 1960, hereinafter to be referred to as the Ordinance, the D 1.‑G., Special Branch, West Pakistan, Lahore by his order dated 11‑12‑1963, directed the petitioner to submit himself for interro gation by Mr. Asif Majid, the then D. I.‑G., Peshawar Range. On ,13th December 1963, the D. I.‑G., Peshawar Range, asked two question's from the petitioner but the question with which we are concerned is Question No.

2. The question and. answer given by the petitioner read thus:‑ "Q. Did you obtain this information from any Government servant in any Government Department A. I don't want to name any department whether I have received information from there or not. As already stated, I will not disclose the source of my information, I am fully aware of the consequences of my action in. refusing to disclose the source of information." The refusal of the petitioner to answer the question, referred to above, led to the arrest of the petitioner, and a case under section 13 of the Ordinance was registered against him. Charges were framed against the petitioner and when the petitioner entered in his defence he cited several D. Ws. out of whom the four D. Ws. were refused to be summoned by the learned trial Magistrate, on the ground indicated above.

3. Mr. Muhammad Afzal Khan Bangash, learned counsel for the petitioner, argued that since the news item was subject matter of debate on the floors of the Provincial and the National Assemblies, and since the Privilege Committee of the Provincial Assembly was also seized of the matter and the Chief Secretary appeared before the Committee comprising of Knwaja Muhammad Safdar, Leader of the Opposition, and Sheikh Masood Sadiq, Leader of the House, the said witnesses were very material witnesses for the defence of the petitioner in that the result of the case would largely depend on the question whether the Circular letter was a "Secret document" of which the Govern ment could claim privilege, and therefore, those witnesses would be able to throw light on this question. It was also argued that it was imperative on the Magistrate to call the D. Ws. cited by an accused unless he considered that the witness was sommoned "for the purpose of vexation or delay or for defeating the ends of justice". It was complained that the refusal of the learned Magistrate was not for any one of ‑the three grounds, on which he could have declined to summon the witnesses.

4. Mr. Sher Bahadur Khan, Additional Advocate‑General, on behalf of the State, with his usual fairness conceded that though the learned Magistrate while refusing to summon the defence witnesses had not in so many words stated any one of the three grounds on which he could decline to summon the witnesses, but there was no manner of doubt that when he stated that the only purpose to summon the witnesses was to turn the Court Room. into a political platform, he clearly meant that the summoning of the witnesses was clearly vexatious and intended to delay the trial and thus defeating the ends of justice. The learned A. A.‑G. argued that the petitioner had made a statement before the trial Magistrate, indicating the purpose for which the Chief Secretary was cited as a defence witnesses, because "he issued the circular letter in question the publication about which resulted in this case. His appearance in the Court as witness is necessary as he is directly connected with the circular letter, and therefore connected with the case". It was argued ,that since the Circular letter had been exhibited by the prosecution, and its having been issued by the Chief Secretary was also admitted, the Chief Secretary could not in any way advance the defence of the petitioner. As regards the summoning of Khwaja Muhammad Safdar, Leader of the Opposition and Sheikh Masood Sadiq, Leader of the House, it was argued that the purpose for which they were summoned was that the Circular in question was the subject‑matter of a privilege motion moved in the West Pakistan Assembly by an opposition member and was also debated on the floor of the house in which both these D. Ws. participated, one on behalf of the Opposition and the other on behalf of the Government. The learned. A. A.‑G., therefore, argued that so far as the proceedings on the floor of the Provincial Assembly are concerned, the same have been fully published in the reports of the Assembly, which under section 57 of the Evidence Act need not be proved as the Court can take judicial notice of what proceedings were taken in the Assembly. With regard to proceedings before the Privilege Committee, it was argued that the same were secret and even the Assembly cannot share ‑the knowledge of what was discussed in the Privilege Committee, although the result arrived at is communicated to it and is published in the proceedings of the Assembly. Even if these witnesses were summoned by the Court and questioned with regard to what transpired inside the Privilege Committee, they are bound to claim privilege and no Court can force them to disclose what happened there. As a matter of fact any attempt to force any person to divulge any thing that passed before the Privilege Committee would amount to a contempt of the Legislature.

5. After hearing the learned counsel for the parties at some length, I have formed the opinion that the order of the learned Magistrate refusing to summon the defence witnesses, referred to above, cannot be sustained on the narrow ground that the learned Magistrate has not declined to summon the witnesses on any one of the grounds specified in section 257, subsection (1), Cr. P. C., namely, that the defence witnesses were summoned (1) for the purpose of vaxation (2) or to delay and (3) or for defeating the ends of justice. The learned Magistrate, on the other hand, as already stated, refused to summoned the witnesses, as he thought that the summoning of the witnesses was intended to convert the Court into a political platform. The use of word "shall" in section 257 renders the language imperative and makes it incumbent on the Magistrate to summon the defence witnesses unless for any of the grounds listed therein he declines to summon. The provisions of section 257 (1) are, therefore, imperative, as it is a rule of procedure designed to ensure justice, and the Courts would be very jealous of allowing any encroachment on such a right, in particular when the present Constitution guarantees freedom of speech and expression to every citizen, subject to reasonable restrictions imposed by law in the interest of the security of Pakistan, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence. It is also important to observe that the Constitution also guarantees that "no person shall be deprived of life or liberty save in accordance with law". Since section 257 of the Cr. P. C. is undoubtedly a "law" within the meaning of the Constitution, an accused person has an inalienable right of summoning defence witnesses, provided their evidence is relevant to any of the charges levelled against him. The conviction of the accused without affording him opportunity to examine defence evidence is wholly illegal as it not only contravenes the mandatory provisions of section 257, but it also violates the Constitutional guarantee that no person would be deprived of his liberty "save in accordance with law". What is really important is not that the defence witnesses summoned by the accused are likely to advance his defence but what is of fundamental importance is that the accused has the right of producing defence and may be that the defence evidence instead of helping him rather clinches the matter against him and fill up the lacuna in the prosecution case.

6. The decision of the case against the petitioner largely depends on the question whether the impugned circular letter was secret or not and as the letter in question had been issued under the signature of the Chief Secretary he was the proper person to depose whether the letter was secret or .not and as already remarked, may be that his evidence proved fatal to the defence. The evidence of the other three witnesses, namely, Khwaja Muhammad Safdar, Leader of the Opposition, West Pakistan Assembly, Sheikh Masood Sadiq, Leader of the House, West Pakistan Assembly, and Mr. Yusaf Khattak, Leader of the Opposition, National Assembly is also material to the defence, I therefore, accept the revision petition, and direct that the four defence witnesses should be summoned by the Magistrate. K. B. A. Petition accepted.