1977 P Cr (PLP)

Dr. Khalid Ranjha for Petitioners. S. M. Nazim and Ihsanul Haq for the Complainants. Maqbool Hussain Shah for the State. This is an application under section 215 read with section 561‑A Cr. P. C. by Sher Muhammad, Nawab and Shah Muhammad for quashment of their commitment to the Court of Session, by the learned Inquiry Magistrate vide his order dated 29‑4‑1974. They are accused of an offence under section 302/ 34, P. P. C.

2. The ground on which they have applied for quashment of the com mitment order is that the learned Inquiry Magistrate has passed the impugned order without examining the Investigating Officer and 4 eye‑witnesses and that the non‑production of these witnesses before the Committing Magistrate has caused serious prejudice to the petitioners' case. In support of this contention reliance was placed on an order passed by me on 16‑7‑1973, in Muhammad Aslam v. State (Crl. Misc. No. 250/Q of 1973).

3. The learned counsel for the complainants opposed the application on the ground that the afore‑mentioned facts did not warrant the quashment of the commitment order. They relied on State v. Muhammad Shaft (1972 P Cr. L 1235) and Mst, Niamat v. Emperor (A I R 1936 Lah. 533). The judgment in State v. Muhammad Shafi is based on the view of the Full Bench in the case of Mst. Niamat. In Muhammad Aslam v. State I had taken the view that the non -production of the Investigating Officer had prejudiced the accused petitioner's case and had, for that reason, set aside the commitment order. My afore mentioned judgment was based mainly on the observations of the Division Bench of the Lahore High Court in Sher Bahdur v. Emperor (A I R 1934 Lah. 667). The view taken by this Court in that case was that a commitment order passed without examining all the evidence that the prosecution meant to produce in the case was against the provisions of Chapter XVIII, Cr. P. C. and was, therefore, bad in law. But this view was subsequently overruled by the Full Bench of this Court in A I R 1936 Lah. 533, wherein it was held, inter alia, that it was not incumbent upon the Inquiry Magistrate to examine all the prosecution witnesses before committing the accused to trial and that the witnesses not examined by him could be produced at the trial before the Court of Session. This authority had not been brought to my notice by any of the learned counsel while arguing Muhammad Aslam's case:

4. Considering that there is Full Bench authority on the question involved in this cage I am bound to follow the same and I, therefore, hold that the non‑production of some of the witnesses before the learned Inquiry Magistrate does not render the commitment order invalid. It is well establish ed that the commitment order can only be set aside under section 215, Cr. P. C. on a point of law and that mere insufficiency of evidence has not been held to be a point of law. Refer Muhammad Azam v. State (1970 P Cr. L J 1276) and Mehraj Din v. State (1973 P Cr. L J 414).

5. The application is, therefore, dismissed. Petition dismissed