P L D 1973 Lahore 678 (PLP)

Mubashar Latif for the State. This is an application by Abdur Rehman accused for transfer of the cash against him pending under section 408/467, P. P. C. in the Court of Mr. Ataullah Qureshi, Assistant Commissioner, Sadiqabad, District Rahimyar Khan.

2. The sole ground urged for transfer is that the learned 'Magistrate directed the petitioner to deposit the expenses of the three defence witnesses cited by him in the application dated 18th of January 1972. On the same day he put in an application submitting to the learned Magistrate that he was, without a job for about a year and could not pay the expenses of the witnesses because of the stringent financial condition in which he found himself. He made an alternative prayer that the witnesses be either summoned at State expense or as Court- witnesses. The learned Magistrate directed that the High Court Rules and Orders be put up on 19th of January 1972. There is no order of 19th of January but he passed an order on 8th of March 1972, saying that he was not willing to summon the defence witnesses as Court‑witness and was further not prepared to summon the defence witnesses without the deposit of their expenses by the petitioner.

3. Since the learned Magistrate did not reply to the repeated communications sent by this Court. I had perforce to issue a notice of contempt to him. He is present in person. He states that he passed the impugned order under sub‑clause (2) of section 257 of the Criminal Procedure Code. This clause reads as under:‑ "The Magistrate may, before summoning any witness on such application, require that his reasonable expenses incurred. in attending for the purposes of the trial be deposited In: Court." It is clear from the above phraseology that the law gives a. discretion to the Magistrate to order, in a given case, the deposit of the expenses of the defence witnesses by the accused. The calling of the witnesses is, however, imperative and the com parison of the language of the two clauses of this section clearly shows that the provisions of sub‑clause (2) are not: imperative but are discretionary.

4. The Dacca High Court in the case of Muhammad Hussain Talukdar v. The State (P L D 1961 Dacca 434) said that where the Court felt that a witness was unnecessary and may be ultimately given up by the accused, it could order the deposit of diet money. It further observed that the amount of the diet money should have been specified by the learned Magistrate. The Lahore High Court has been consistently of the view that the expenses of the defence witnesses in a warrant case have to be borne by the State. See Syed Habib v. Emperor (A I R 1929 Lah. 23), Habib v. Mirza Mehdi. Hassan (108 I C 907), Ram Naraln Sharma v. Emperor (A I R 1932 Lah. 481), Parshotam, Das v. Emperor (A I R 1936 Lah. 919) and Khushi Muhammad v. .4bdullah Khan (A I R 1937 Lah. 458). A slightly discordant note was struck in the case of Nanak Chand v. Suraj Parkash (A I R 1938 Lah. 693) wherein Blacker, J. with reference to the relevant rules framed by the Government under, section

544. Cr. P. C. held that in a bailable and non‑cogniz able case the accused could be called up an to pay the expenses of the witnesses. This related to a complaint filed under section 500, P. P. C. In view of the weight of authority the learned Judge did not want to depart from what had been consistently held, and made a reference to a larger Bench, but ultimately the complainant made a statement that he did not want to proceed with the complaint and no final decision could be given by the larger Bench. The view expressed in the cases mentioned above, therefore, holds the field.

5. Rule 14, Chapter I‑D of Volume III of the Rules and Orders of the High Court clearly says that in ordinary warrant‑case the cost of causing the attendance of accused's necessary witnesses is usually borne by the Government. The word 'necessary' used in the rule is very significant. It would mean that where the Court has a feeling that the witness is unnecessary it may reject the application outright but If it is not so positively sure that the witness is not necessary, it may bypassing an order or giving reasons, direct the accused to deposit the` diet money of a witness in a warrant‑case so that the defence of the accused is not hampered.

6. The learned Magistrate had ordered on 18th of January 1972, that the Rules and Orders of the High Court be produced before him, but in the final order which he passed in March 1972, there is no reference to any such rule nor any reasons have been given for rejection of the application of the petitioner. He also failed to specify the amount to be deposited which according to the judgment of the Dacca High Court, referred to above, was incumbent upon him to do. The offences charged In this case are under sections 408 and 467, P. P. C. both of them being cognizable and non‑bailable. The relevant rule framed by the Government under section 544, Cr. P. C., which has the statutory force, reads as under:‑ "The Criminal Courts are authorized to pay, at the rates specified below, the expenses of complainants or witnesses (1) in cases in which the prosecution is instituted or carried on by or under the orders or with the sanction of the Government or of any Judge, Magistrate, or any other public officer, or in which it shall appear to the presiding officer to be directly in furtherance of the Interests of the public service (2) in all cases entered in Col. 5 of Sch. 2 appended to the Code of Criminal Procedure, as not bailable; (3) in all cases which are cognizable by the police and (4) of witnesses in all cases in which they are compelled by the Magistrate, of his own motion, to attend under section 540, Criminal P. C: ' It is, therefore, clear that the petitioner could not be called uponl~ to deposit the diet money of defence witnesses in this case.

7. I, therefore, exercising my powers under section 439, Cr. P. C. set aside this order of the learned Magistrate and direct that the two witnesses to which reference has been made in the application before me, by the petitioner, shall be summoned at State expense.

8. The ground urged for transfer is on a legal plane. No Inference can be drawn on this basis that the learned Magistrate had any personal bias against the petitioner. I, therefore, do nod feel that this case requires transfer. I dismiss the application for transfer. S. A. H. Order accordingly.