P L D 1975 Lahore 395 (PLP)

In view of the order of the honourable District and Sessions Judge, Mianwali dated 24-8-74 and also the general instructions issued by the Supreme Court of Pakistan requiring the speedy disposal of this case I think it is in the interest of justice that the case should be speedily disposed of because the accused will have ample opportunity to produce this defence in the Court of Session. In view of the these facts, I reject the application." The learned counsel for the petitioner argued that this order was bad in law inasmuch as the learned Inquiry )Magistrate was bound to summon the witnesses which Altaf-ur-Rehman co-accused desired to be called in his defence and that the ground that the said witnesses could be safely produced at the trial, before the Court of Session, is untenable in law. For this contention he relied upon Bacha v. State P L D 1959 Lah. 869.

3. The learned counsel for the complainant and the State opposed the revision petition and submitted that the ground urged on behalf of the petitioner had no merit. In support of the contention that the learned Magistrate could reject the application for summoning the defence witnesses, the complainant's counsel relied upon Ghulam Sarwar v. State 1971 P Cr. L J 1043.

4. I have carefully considered these contentions. For proper apprecia tion of the contention as well as its reply it will ,be useful to reproduce section 208, Cr. P. C. (1) Taking of evidence produced.-The Magistrate shall when accused appears or is brought before him, proceed to hear the complainant (if any), and take in manner hereinafter provided all such evidence as may be produced in support of the prosecution or in behalf of the accused, or as may be called for by the Magistrate. (2) (3) Process for production of further evidence.-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." It will be noticed that while subsection (1) requires that the Magistrate shall examine all the witnesses produced by the accused before him. sub section (3) laid down that if the complainant applies to the Magistrate to issue process for the attendance of any witness the Magistrate has the discretion to reject the application, for reasons to be recorded. The apparent contradiction in these two subsections was resolved by the learned Judge in the case of Bacha v. State in the following words :- "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 subsection (3). I 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." The same view was taken in Emperor v. Surath I L R 42 Cal. 608 and Saadat Mian v. King-Emperor A I R 1927 Pat.

243. As pointed out by the learned Judge in Bacha's case, a Full Bench of the Lahore High Court in Asst. Niamat v. Emperor A I R 1936 Lah. 533 (where the question in issue was not actually the same as involved in the present case), pointed out very succinctly that while subsection (l) of section 208, Cr. P. C. provides for the recording of the evidence of willing witnesses, subsection (3) deals with the summoning of unwilling witnesses.

5. As a result, I feel that the learned Inquiry Magistrate had the jurisdiction to reject the application of Altaf-ur-Rehman co-accused.

6. I now proceed to consider whether the jurisdiction was exercised by him properly and the grounds given by him for rejecting Altaf-ur-Rehman's application were proper and legal. It is true that it has been held by this Court in Bacha's case that the inquiry Magistrate cannot refuse an application by the accused to call witnesses merely because those witnesses could be called later on, in the Court of Session. But in the present case this is not the only reason that the Magistrate recorded for rejecting the application. His order has been reproduced above and it is clear from a reading thereof that he felt that a long list of witnesses had been mentioned in the application merely with a view to delay the further proceedings and that the application did not appear to the learned Inquiry Magistrate to be a bona fide one. Moreover, he was also conscious of the observations of the Supreme Court made in the bail application filed by one of the accused persons in the said case, requiring speedy disposal of the inquiry proceedings. In Saadat Mian v. King-Emperor a similar question had arisen but the learned Court repelled the contention that the order of the Inquiry Magistrate rejecting the application of the accused for summoning of witnesses was illegal inter alia, with the following observations :- "He has given two reasons : (1) that there is .prima facie evidence for commitment of the accused for trial in the Court of Session, and (2) that the summoning of the witnesses for the defence will cause inordinate delay in the trial of the case. The Magistrate justifies his reasons by referring to the very long delay already caused in the disposal of the case and much on account of the laches on the part of the accused. We are not at all concerned in the present case as to whether the reasons given by him would have appealed to another person or not. We have only to see if the procedure adopted by the Magistrate has contravened any of the statutory provisions in the Code. He has recorded his reasons for rejecting the application of the accused to summon the defence witnesses. He has also expressly held that it was unnecessary to do so at that stage. Therefore, he has complied with the provisions contained in clause (3) of section

208. The order of the Magistrate cannot be held to be illegal and, therefore, no point of law arises out of it so as to justify the quashing of the commitment by this Court under section 215, upon that ground." This view was followed by this Court in Ghulam Sarwar v. State 1971 P Cr. L J 1043.

7. I feel that the learned Inquiry Magistrate had applied his mind anti given cogent reasons for rejecting the application and even if one of the reasons (namely, that the defence witnesses can be produced subsequently at the trial) is not a proper ground it does not by itself render the order illegal because majority of the grounds given by the Magistrate are appropriate and are sufficient for reaching the conclusion arrived at by the Magistrate. Moreover, even that ground is not considered by me to be untenable in law because it does not prejudice the petitioner's case in such a way as to render the provisions of section 537, Cr. P. C. inapplicable. Inquiry proceedings are mainly directed towards checking up as to whether or note there is a fit case for being sent up for trial and if a prima facie case has been made out by the witnesses produced by the prosecution, the case can justifiably be sent up for trial and the accused can take up his defence and produce evidence in support thereof at the trial, without any prejudice being caused to him on the ground that he had not done so earlier, for he can always reply that he was not permitted to do so by the learned Inquiry Magistrate. Moreover, the fact that the Law Commission has recommended doing away with the commitment proceedings altogether shows that even high legal authorities do not consider the `inquiry proceedings' under Chapter XVI, Cr. P. C. to be so important that if they are done away with, it would amount to taking away of a valuable right of the accused.

8. As a result of the above discussion, I feel that there is no merit in the petition, which appears to have been filed merely for the purpose that of the petitioner is successful in getting the commitment order set aside as illegal and getting the Inquiry restarted from the very beginning, he (the petitioner) can. again, apply for bail on the ground that there has been 'inordinate delay' in the finalization of the inquiry proceedings. I, therefore, dismiss the petition. S. A. H. Petition dismissed.