2000 PLP 671 (MLD)

2. Initially the counsel for the complainant and the learned State counsel opposed the contention of the learned counsel for the appellants. I have perused the record and have gone through the judgment passed by the learned trial Court regarding conviction of the appellants as stated above. The provisions on the basis of which the argument of the learned counsel for the appellant ensues is section 265‑F(7) which reads as under:‑‑ "(7) If the accused, or anyone of several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such grounds shall be recorded by the Court in writing." 3, The counsel for the appellants submits that in view of the above provision fair opportunity ought to have been extended for production of the defence witnesses. Learned counsel for the complainant submits that to invoke such provision the accused were required to file proper application for the issuance of the process to compel the attendance of the witnesses and this has not been done, the Court is therefore, not obliged to issue such process resultantly the appellants ought not to have any grievance against the Court. I have perused the case diary, dated 16‑4‑1998 which reads as under:‑‑ 16‑4‑1998 Both accused are present on bail. Statement of accused under section 342, Cr.P.C. recorded. They lead defence to disprove the charge. Learned advocate for them submits application for issue of summons to D.Ws. Order on it. Issue summons. Let Rs.200 be deposited as T.A. for D.Ws. The D.A. and D.D.A. are present. Put off to 24‑4‑1998 for D.Ws. Accused are directed to attend.

4. Pursuant to that the processes were issued and it appears that the same were issued on an application moved by the appellants. Statements of the accused under section 342, Cr.P.C. were recorded on the same day, wherein they have also disclosed the names of two defence witnesses and have expressed their intention to examine them. Process were issued on two successive dates. Thereafter, on 4‑5‑1998 learned trial Court recalled the order in the following terms:‑‑ "Accused are present on bail. D.Ws. are called absent. Order passed for calling D. Ws. stands recalled. Let the matter be fixed for final arguments. Learned. D.A. and D.D.A. are present. Put off to 12‑5‑1998 for arguments. Accused are directed to attend. "

5. In the light of the above facts and the provisions of law reproduced above the accused persons are entitled in law for a fair trial; under Article 4 of the Constitution 1973, accused are also entitled to be dealt with in accordance with law, and right of producing evidence in support of their case is a valuable right which cannot be denied or deprived in a cursory manner. Under subsection (7) of section 265‑F, Cr.P.C. the Court is obliged to record reasons for denying the issuance of such process, except where the Court comes to a conclusion that the application is made for the purpose of vexation or delay or defeating the ends of justice, only then such request could be declined or refused under the provision reproduced above. The Court is obliged to record reasons in writing declining to issue process for the production of defence witnesses or for the production of any documents or other things as may be considered necessary for the defence for which the accused had applied for after entering into defence.

6. Order, dated 4‑5‑1998 reproduced in para.4 above shows that same has been passed mechanically without application of mind and due regard of the provisions of law. It is settled principle of law that a thing required to be done in particular manner is to be done and executed in same manner, which exercise is found missing in the order, dated 4‑5‑1998 recalling the issuance of process. As noted above right to defend is a valuable right and same has been recognized and incorporated in subsection (7) to section 265‑F, Cr.P.C. accused can be denied such right only when the Court comes to the conclusion that such right is being abused for vexatious reasons or to delay or defeating the ends of justice. Such conclusion is to be recorded in writing and not otherwise. Learned counsel for the complainant vainly argued that process could only be issued on written application, which in the instant case has not been made. Arguments are without force. Record shows that the statements of accused under section 342, Cr.P.C. were recorded and to a specific question put to him whether he wanted to examine any witnesses in his defence, he stated yes and gave names of two witnesses with addresses. One of the witnesses is also named in F.I.R. who was not examined by the prosecution.

7. Trial Court is obliged to issue process to compel the attendance of defence witnesses even on oral motion of the accused. It is not necessary to make a formal written application as suggested by the complainant's counsel. Such strict interpretation would be negating the right of accused for even handed and fair trial. Even otherwise once the Court had issued process as is evident from record which objections are rendered hypertechnical and cannot be entertained to sacrifice the justice at the alter of technicalities.

8. In view of the above l am of the humble opinion that the impugned judgment recording conviction on this ground, cannot be sustained, Learned trial Court ought to have given fair and reasonable opportunity to the accused to lead the defence evidence. Impugned judgment is accordingly set aside, case is remanded to the learned trial Court, with direction to decide the same afresh after recording the defence evidence within reasonable time, with further direction to issue process to procure the attendance of defence witnesses at an early date and matter be disposed of expeditiously. With this application as well' as appeal stand disposed of. H.B.T./M‑485/K Case remanded.