P L D 1959 (W (PLP)

Date of hearing : 22nd July 1959. The learned Sessions Judge, Rahim Yar Khan, has recommended revision of the order of Mr. Muhammad Karam Shah, Magistrate 1st Class, Sadiqabad, committing Bacha petitioner to the Court of Session on a charge under section 302, P. P. C. on the ground that the learned Magistrate has violated the mandatory provisions of sections 208 and 211 of the Code of Criminal Procedure. The relevant portion of the order of the learned Sessions Judge runs :‑ "By reason of the failure of the learned Magistrate to comply with the mandatory provisions of section 208 (3) and section 211 (1), Cr. P. C. mentioned above, the order of commitment in this case is not legal. In the latest authority of High Court reported in Shal Khan v. The State P L D 1959 Lah. 55 it was held that the failure of the Magistrate to comply with the provisions of section 211 (1) made the order of commitment illegal and the commitment proceedings were quashed under section 215, Cr. P. C. The facts of the present case are very much stronger for the accused as he had clearly stated in his examination under section 342, Cr. P. C. that he wanted to produce defence evidence before the Committing Magistrate and actually put in an application on 20‑12‑1958 for his witnesses being summoned. The Magistrate had no jurisdiction to disallow his request and the charge framed by him in the case is also illegal, as he could proceed to frame the charge under section 210, after the evidence to be recorded under section 208 had been recorded".

2. Although, for reasons to be presently recorded, the recommendation of the learned Sessions Judge must be accepted, I do not agree with the view of the law as expressed in leis order. It is true that the ruling to which he was referred in the passage cited above supports him, the relevant portion running‑-- "In commitment cases it appears that the Legislature intended to give full facility to the accused at each and every stage of the inquiry or trial to produce his defence evidence. Before the framing of the charge it is the right of the accused to produce his defence evidence under the provisions of section 208 and it is the duty of the Magistrate to record such evidence, if tendered, and for that purpose the Magistrate is bound to compel the attendance of the witnesses which the accused may wish to produce". But with the utmost respect, I am of the opinion that the above proposition is too broadly stated, the learned Judge not having dealt with the distinction between subsections (1) and (3) of section 208 of the Criminal Procedure Code. Subsection (1) lays down that the Magistrate shall, when the accused appears or is brought before him, proceed to hear the complainant (if any), and take all such evidence as may be produced in support of the prosecution or on behalf of the accused or as may be called for by the Magistrate. Subsection (3) is to the effect that if the complainant or officer conducting the prosecution, or the accused, applies to the Magistrate to issue process to compel the attendance of any witness or the production of any document or thing the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so. The question immediately arises whether the expression "all such evidence as may be produced" occurring in subsection (1) includes those witnesses for whose attendance the prosecution or the accused applies to the Magistrate to issue process. In my opinion, it clearly does not. The main reason for this conclusion is that if this interpretation be accepted subsections (1) and (3) of section 208 of the Code of Criminal Procedure would be contradictory since, under subsection (1), the Magistrate would be bound to issue process and would have no discretion to refuse, a discretion which is, on the contrary. clearly conferred by sub section (3). 1 am of the view that a distinction must be drawn between the witnesses produced by the prosecution or the defence without the assistance of the Court and those for whose attendance the help of the Court is sought.

3. I am fortified in the above opinion by several judicial decisions. For example, in Emperor v. Surath (I L R 42 Cal. 608) it was held that although a Magistrate is bound, before passing an order of commitment, to examine all the witnesses produced by the accused he is not so bound to examine all those whom the accused is prepared to produce after process obtained for their appearance. Again, in Saadat Mian v. King‑Emperor (A I R 1927 Pat. 243) the learned Judges held that though under clause (1) of section 208 of the Code of Criminal Procedure it is imperative upon the Magistrate to examine any witness produced on behalf of the accused, where a Magistrate refused to issue process to defence witnesses and gave reasons for such refusal, the procedure adopted by the Magistrate did not contravene any of the statutory provisions of the Code. A Full Bench decision of the Lahore High Court in Mst. Niamat v. Emperor (A I R 1936 Lah. 533) may also with advantage be referred to. The question at issue in that case was different from the present, but in the course of their judgment the learned Judges pointed out that subsection (1) of section 208 of the Code of Criminal Procedure provides for evidence from willing witnesses and sub section (3) from unwilling witnesses.

4. I therefore hold that, far from having no jurisdiction to disallow the application of the accused to have witnesses summoned, the learned Magistrate had, under subsection (3) of section 208 of the Code, the power to refuse to summon such of the said witnesses as he considered it unnecessary to call.

5. The next question for decision is whether the reason given by the learned Magistrate for refusing to call any of the defence witnesses is adequate. The rough translation of the order in question runs :‑ "The challan was put up in Court on the 18th of August 1958, and a sufficient time has already elapsed. The produc tion of evidence by the accused in this Court is merely to prolong the proceedings: He is, therefore, directed to produce his defence in the Sessions Court". The above reason is clearly insufficient. In Jashanmal v. Emperor (A I R 1939 Sind 222) the learned Judges held :‑ "It is true that under section 208 (3), Criminal P. C., a Magistrate can, for reasons to be recorded, refuse to issue process to compel the attendance of any witness. But it does not mean that the Magistrate shall refuse the application of the accused to call witnesses because these witnesses can be called hereafter in the Court of Session".

6. I have accordingly no option but to accept the recommendation of the learned Sessions Judge (though not precisely for the reasons given by him), quash the commitment order, and return the case for fresh proceedings according to law from the stage at which the illegality was committed. The learned Magistrate or his successor will still have discretion to refuse, for reasons to be recorded, to call any witnesses whom he considers to be unnecessary, but he should be careful to see that if he does so refuse, his reasons for so doing are adequate. He should further carefully bear in mind the provisions of section 211, Criminal Procedure Code, in the light of the latest judicial pronouncements. K. B. A./A. H. Order accordingly.