P L D 1970 Karachi 457 (PLP)

This order was challenged by the respondents Nos. 1 and 2 in Criminal Revision Application No. 14 of 1966 filed in the Sessions Court at Hyderabad as a result of which this reference under section 438, Cr. P. C. has been made to this Court. Section 257 of the Code of Criminal Procedure empowers a Magistrate to issue process for compelling production of evidence at the instance of the accused even after the latter has entered upon his defence and subsection (1) thereof reads as follows:‑ If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross‑examination, or the production of any document or other thing, the Magistrate shall issue such process unless he con siders that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing : Provided that, when the accused has cross‑examined or had the opportunity of cross‑examining any witness after the charge is framed, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the purpose of justice. This section is intended to give an accused person opportunity' which the further progress of the case may have justified for attendance of a particular witness either for the purpose of examination as a defence witness or for the cross‑examination of a witness already examined by the prosecution, but the necessity for whose further attendance was not apparent at the time of the applicability of section 256, Cr. P. C. The section make A it obligatory on the part of the Magistrate to issue process at instance of the accused to compel the attendance of witnesses named by him except in cases where the Magistrate considers that such an application should be refused on the ground that it is made for the purpose of "vexation or delay or for defeating the ends of justice". The section also makes it necessary for the Magistrate to record such grounds in writing before rejecting the request of an accused person for examination of his witnesses. As observed by Fazl Ali, J. in Sudhir Kumar Dutt and others v. The King (A I R 1949 F C 6) the language of the section is imperative and the trial Court has no discretion under it to refuse to issue process to compel the attendance of any witness cited by the accused after he has entered upon his defence, unless it is of the opinion that the application should be refused for any of the reasons which are specified in the section and which it is bound to record.

4. It is no doubt true that the right thus given to the accused is not an absolute one and the Magistrate can refuse to issue process at his instance if he considers that the application for process has been made for the purpose of causing "delay" in t the disposal of the case or for "defeating the ends of justice." These are, however, the only grounds on which such an applica tion can be refused. As observed by Lobo, J. in Emperor v. Rasulbux and others (A I R 1942 Sind 122) :‑ "The refusal to summon a witness called for by an accused person can only be justified on the grounds set out in section 257, Cr. P. C. and it is no sufficient ground to state that a particular witness is not to be summoned because he is an Amil of Hyderabad or because he does not live in the District in which the accused lives or because he is a member of the Legislative Assembly or a Minister who cannot be having any relevant evidence to give."

5. It has been repeatedly held that the mere fact that the Magistrate considers that the evidence of the proposed witnesses will not be material or necessary or that it should not be recorded for any reasons other than those mentioned in section 257, Cr. P. C. itself, is not sufficient for refusing the application for process. Reference in this connection may be made to the cases reported as Raja Muhammad Asghar v. The State (P L D 1965 Pesh. 236), Ganpat Rai and others v. The Crown (A I R 1923 Lah. 420) and M. T. R. Suppaya Chettyar v. S. A. S. S. Karuppaya Pillay (A I R 1937 Rang. 528). In the last mentioned case it was observed that even if the accused is not able to satisfy the Magistrate that the witnesses named by him in his application are going to give evidence which is material in the case, this fact by itself would not necessarily show that the application is made for defeating the ends of justice.

6. While dealing with the provisions of section 257, Cr. P. C. a Division Bench of the Sind Chief Court consisting of Davis, C. J. and Lobo, J. explained the scope thereof in Jume Lal Bakhsh v. Emperor (A I R 1941 Sind 177) in the following words "This section does not, we think, mean that the Magis trate is entitled to refuse to call witnesses whom an accused desires to be summoned in his defence because their number is large or the result would be to delay the case. It is not the fact that the case would be delayed which is the decisive ground under section 257, Cr. P. C. It is that a witness is called for this purpose, and we think before a Magistrate refused to summon a witness, he should ascertain from the accused briefly the substance of the witness's evidence or the point which the witness is to be summoned to prove, and then if he comes to the conclusion that this witness is to be summoned for the purpose of vexation or delay or for defeating the ends of justice he is entitled, after giving his grounds in writing to refuse to issue process. We think he should have dealt with the question of each witness separately, and have decided within the provisions of section 257, Criminal P. C., whether the witness was called for the purpose of `vexation or delay or for defeating the ends of justice', and should then have stated in his order the ground for his refusal. But to reject an application to call witnesses on behalf of an accused merely because enough witnesses have been examined is not in itself a sufficient compliance with section 257, Criminal P. C., and although a case may have already prolonged, the accused is not always responsible for the prolongation of a case. We can understand naturally the Magistrate's desire that cases should not be unduly prolonged, but that is not in itself sufficient reason to reject or to refuse the application of an accused to call witnesses." Similarly in Yusif Ali v. Emperor (A I R 1926 Lah. 454) it was observed by Shadi Lal, C. J., that a Magistrate has no right to arbitrarily limit the number of witnesses to be produced by an accused person in his defence under section 257, Cr. P. C.

7. In the instant case as the learned Additional Sessions Judge has explained in detail there is absolutely nothing on record to suggest that respondents Nos. 1 and 2 were delaying the proceedings. Nor did they apply for examining an unusually large number of witnesses. Only two witnesses were sought to be examined and it was specifically mentioned in the application c itself that they were both present in the Court. Their evidence could, therefore, be recorded without causing any delay in the disposal of the case. The learned Civil Judge and A. C. M., Hyderabad obviously acted illegally in rejecting such a reasonable request of the accused persons merely on the grounds that "the accused cannot be permitted to change D. Ws. at any time at their wishes", and that "no reason was shown for summoning the witnesses at this stage."

8. As I have already pointed out, the ground for refusing an accused's application to call witnesses is not the fact that the case would be delayed but that the witness is being called for that purpose. In the present case as both the witnesses were present in Court and could be at once examined, there was absolutely no question of delay much less could the request of the accused to examine them be attributed to any anxiety on their part to protract the proceedings or to defeat the ends of justice.

9. For the reasons given above I would accept this Reference and set aside the order dated 9‑1‑1968 passed by the Civil Judge and Additional City Magistrate, Hyderabad. The learned Magistrate is directed to allow the examination of Abdul Majid Khan and Nizam Ahmed Qureshi as witnesses for the defence and thereafter to proceed with the case as expeditiously as possible. S. A. H. Reference accepted.