P L D 1967 Lahore 833 (PLP)

This is an application in revision by Kh. Muhammad Rafique, against the order of Raja Salim Akhtar, P. C. S., Special Magistrate, West Pakistan, Lahore, dated the 18th January 1967, whereby he refused to summon as a Court witness Mr. M. H. Shah, formerly Home Secretary to Government of West Pakistan, in terms of the order of his predecessor, Mian Muzaffar‑ud‑Din, dated the 11th January 1965.

2. The facts of the case, briefly stated, are that the petitioner, along with others, is standing trial under section 124‑A of the Pakistan Penal Code. The case was instituted in the Court of Mian Muzaffar‑ud‑Din, the then Special Magistrate, West Pakistan. On his retirement, the case came to the file of Raja Salim Akhtar, Additional Deputy Commissioner, acting as a Special Magistrate for West Pakistan. The prosecution and the defence evidence had concluded and the case was fixed for arguments on 18th January 1967. On that date the petitioner requested the Court to summon Mr. M. H. Shah, as a Court witness in the light of the order of Mian Muzaffar‑ud‑Din passed on 11th January 1965. The learned Special Magistrate turned down his request, because, he was of the view that there was no necessity of summoning Mr. M. H. Shah as a Court witness at this stage when the defence evidence had been closed and his predecessor after passing the order did not consider it proper to implement it and he concluded his order with the observation that it was not expedient in the interest of justice to summon him. The main ground taken up by the applicant is that the learned Magistrate had no power to review the order which was in the nature of a judgment passed by his predecessor or for that matter he had no power to review his own order.

3. A reference to the record shows that on 5th August 1963, an application was filed by the learned Public Prosecutor wherein he prayed that Mr. M. H. Shah may be summoned as a Court witness to prove the sanction order and the Special Magistrate accepted the request and ordered the summoning of Mr. M. H. Shah as a witness. The relevant portion or the order dated 5th August 1963, is reproduced below: "The learned Special Public Prosecutor put in an application requesting that Mr. M. H. Shah, the then Secretary to Govern ment of West Pakistan, Home Department, who had issued the sanction order for the prosecution of the accused may be summoned as a witness to prove that sanction order. The request is allowed. Summons may be issued to Mr. M. H. Shah and the remaining P. Ws. in this case for 6th of September 1963, for evidence at Lahore."

4. On 11th January 1965, Sardar Muhammad Zafarullah, learned counsel for the defence, requested that Mr. M. H. Shah, formerly Home Secretary to Government of West Pakistan, should be summoned as a Court witness. The learned Special Magis trate after hearing the arguments of both sides passed a detailed order. The relevant portion reads as under: "As Mr. Shah was out of the country in U.S.A. at the time and the prosecution produced a Section Officer from the Secretariat, namely, Mr. Muhammad Ibrahim, to prove Mr. Shah's signatures on the sanction order. Now that he has returned to Pakistan and is posted as Commissioner, Rawal pindi Division, he may be summoned as a Court witness."

5. The question that falls for determination is whether the order dated the 5th August 1963, or dated the 11th January 1965, is a "judgment or final order or only an interlocutory order passed in the course of a criminal trial?"

6. Section 369, Cr. P. Code relates only to the alteration of judgment. Although this section refers in express terms to judgments under Chap. XXVI of the Code, still it is clear that the principles laid down therein apply also to final orders which are in the nature of judgments. The section does not apply to orders which are not in the nature of judgments. An order in the nature of judgment is one which is passed on full enquiry and after hearing both sides. To my mind, the order of Mian Muzaffar‑ud‑Din, the then Special Magistrate, dated the 5th August 1963, summoning Mr. M. H. Shah as a Court witness was an interlocutory order to which the provisions of section 369, Cr. P. C. would not be applicable. There is nothing in the Code which forbids the Magistrate to reconsider an order of this kind on sufficient grounds and a Magistrate may recall his order after ordering the issue of summons to a witness. There was no illegality if the Magistrate had rescinded an interlocutory order of his predecessor and declined to summon Mr. M. H. Shah as a Court witness.

7. Learned counsel for the petitioner cited at the bar In re: Harilal Buch (I L R 22 Bom. 949), wherein the learned Judges made the following observations:‑ "The power of revision in criminal cases is very strictly confined, and the same considerations which prevent Subordi nate Courts from altering their judgments on review, hold good in respect of final orders which are of the nature of a judgment."

8. I am in respectful agreement with the law enunciated in the above‑quoted judgment; rather my judgment proceeds on the same premises. But, as observed earlier, the order of Mian Muzaffar‑ud‑Din, summoning Mr. M. H. Shah as a Court witness was an interlocutory order, it could be reviewed.

9. The upshot of the discussion is that the impugned order was right and proper and it was not made without jurisdiction. I accordingly reject the revision petition.

10. Let the papers be sent down at once. The learned Special Magistrate is directed to dispose of the case expedi tiously. K. B. A. Petition dismissed.