1968 PLP 1381 (SCMR)

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore. dated the 8th March 1967, in Criminal Revision No. 199 of 1967). -- S. 257‑Whether order passed under S. 257 interlocutory and whether cannot be reviewed [Quaere]. (b) Penal Code (XLV of 1860) -- S. 124‑A read with Criminal Procedure Code (Y of 1898), Ss. 196 & 257‑Offence under 5.124‑A, P. P. C. Home Secretary to Provincial Government signing order of complaint, on behalf of Provincial Government‑Summoning of Home Secretary for examination not necessary‑Order of Magistrate refusing to issue process under S. 257, Cr. P. C. not interfered with by Supreme Court. Raja Said Akbar Khan, Advocate‑General West Pakistan Lahore (Mian Aslam Riaz Hussain, Advocate with him) instructed by Ijaz Ali, Attorney Supreme Court for the State. JUDGMENT ABDUS SATTAR, J.‑The appellant is being prosecuted under section 124‑A, P. P. C. in the Court of the Special Magistrate, West Pakistan, Lahore. In the present case, the complaint, as required by section 196, Cr. P. C. was signed by Mr. M. H. Shah, who, at the relevant time, was the Home Secretary to the Provincial Government. On the 11th January 1965, the Special Magistrate, on prayer made by the defence, decided to summon Mr. M. H. Shah as a Court witness. This order was passed after hearing the objections raised by the Public Prosecutor. Before the direction given in the said order was carried on, the Special Magistrate retired. On the 18th January 1967, the successor Magistrate reviewed the said order and refused a request by the counsel for the defence to summon Mr. M. H. Shah. The High Court was moved in Revision against this order and the view taken was that the powers in Criminal Revision were "very strictly confined" and that the successor Magistrate had power to review an interlocutory order of his predecessor. Leave to appeal was granted to consider whether the High Court by merely considering that the order passed by the Magistrate to summon Mr. M. H. Shah, was an interlocutory order and as such could be reviewed did proper justice to the case acting under section 439 read with section 423(1)(c), Cr. P. C. The learned counsel for the appellant has contended that the order passed on the 11th January 1965, by the Special Magistrate deciding to summon Mr. M. H. Shah, is an order under section 257, Cr. P. C. which is a final order particularly when it was passed after taking into account the objections of the Public Prosecutor. Such an order, it is urged, is not an inter locutory order and could not be reviewed by the successor Magistrate. We feel that in the present case it is not necessary to decide the question whether an order passed under section 257, Cr. P. C. is a final order not liable to be reviewed. Learned counsel for the petitioner has not been able to satisfy us that the examination of Mr. M. H. Shah is necessary in the present case. Mr. M. H. Shah signed the complaint under section 196, Cr. P. C. on behalf of the Government. Section 196, Cr. P. C. is in the following terms :‑ "no Court shall take cognizance of any offence punishable under Chapter VI, except certain sections enumerated therein, unless upon complaint made by order of or under authority from the Provincial Government or some officer empowered by the Provincial Government in this behalf." As an offence under section 124‑A, P. P. C. could be taken cognizance of only upon a complaint as contemplated by section 196, Cr. P. C. Mr. M. H. Shah signed the order of complaint on behalf of the Provincial Government. The argument that by cross‑examination of M. H. Shah, it could be elicited whether there were sufficient facts before him to warrant the passing of the order in question does not appeal to us. The facts and materials on which the prosecution rely are to be placed before the Court, and, we are sure have already been placed, and we feel that there is no necessity of examination of Mr. M. H. Shah. Learned counsel for the appellant had failed to satisfy us that non examination of Mr. M. H. Shah will prejudice the defence. Regard being had to these facts the order appealed from does not call for interference by this Court. The appeal, is, therefore, dismissed and the order staying further proceedings in the trial is vacated. Appeal dismissed.