In a private complaint, filed by the petitioner against the respondent, who is his wife and two others, the learned trial Magistrate on 19-3-1977 framed charge under section 406/420/468, P. P. C., against the accused. On 5-4-1977, the petitioner applied to the learned trial Magistrate, to summon three witnesses namely K. M. Pasha, Humayun Rashid and Muhammad Afzal, who are stated to be respondent's ex-husbands. This application was allowed on the same date. In the meantime, the statement of K. M. Pasha was recorded. The petitioner moved another similar application on 13-2- 1978, that the remaining two witnesses were not prepared to appear unless summoned by the Court. This application was also allowed and they were ordered to be summoned, in accordance with law. On 15-11-1978 when Muhammad Afzal was put in the witness box as P. W. 3, the respondent raised an objection to his examination as a witness and filed an application for review of the order dated 5-4-1977, on the plea that the names of these two witnesses were not mentioned in the list appended with the complaint and that the petitioner was permitted to produce them, to the prejudice of the respondent, without giving her an opportunity of being heard. The learned trial Magistrate took the view that as sufficient time had expired since the summoning of these two witnesses and there was no objection on the part of the accused, their examination would not cause any prejudice to the respondent. Thus by his order dated 15-11-1978, he disallowed the application.
2. The respondent challenged. This order through a revision, which was accepted and the order of the trial Magistrate summoning the two witnesses set aside by the learned Additional Sessions Judge on 14-4-1979. He maintained :- "Since the names of Humayun Rashid and Muhammad Afzal were not mentioned in the list submitted by the respondent, the mandatory provisions of section 241-A, Cr. P. C. Were not complied with. The evidence or substance of the evidence of these witnesses was not appended with the complaint."
The petitioner has now come to this Court for removal of the order dated 14-4-1979, through judicial review.
3. It was argued on behalf of the petitioner that he fully complied with the requirements of section 241-A, Cr. P. C. Inasmuch as the names of these two witnesses, which had been mentioned in the complaint, were included in the list of the witnesses and the gist of their evidence also filed with the complaint. The list and the gist of the evidence were supplied to the respondent on 1-3- 1977, when she entered appearance in the Court. In the submission of the learned counsel, by means of his application, the petitioner merely sought the aid of the Court to procure the presence of these witnesses, through Court processes. The argument which prevailed with the learned trial Magistrate that for a fairly long time, the respondent did not object and. Thus she was not prejudiced was also reiterated by him. Alternatively, he submitted that under section 244 (2) and 540, Cr. P. C., the learned trial Magistrate had ample powers to summon any witness and thus his order dated 5-4-1977, stood protected under these provisions as well.
4. I have examined the record, in the light of the submission of the learned counsel for the parties.
The list of the witnesses is not on the record. It is, therefore, not possible to evaluate the petitioner's submission that the names of the witnesses in question, were incorporated in the list. When faced with this situation the learned counsel came forth with the submission, that this list was removed from the file at the instance of the accused. This allegation cannot be resolved on the basis of the present record. It is, however, to be seen that this contention was never raised by the petitioner before the learned Additional Sessions Judge. The line of reasoning, adopted by the petitioner's counsel, at the revisional stage, demonstrates that these two witnesses were not mentioned in the list and thus he justified the trial Magistrate's order on other grounds. I am, therefore, not inclined to accept the argument that the petitioner incorporated the names of these two witnesses, in the list filed with the complaint under section 241 (2) of the Cr. P. C.
5. Section 244 (2), Cr. P. C. Casts an obligation on the Magistrate to issue summons to any witnesses, on the application of either of the parties, to the complaint unless such application is considered by him as vexatious A or intended to cause delay or opposed to the ends of justice. The learned counsel for the petitioner, however, conceded that the application referred to in section 244 (2), Cr. P. C. Cannot travel beyond the witnesses envisaged by subsection (2) of Section 241-A, Cr. P. C.
6. The argument resting on section 540 is also misconceived. No doubt, this section confers plenary powers on a Magistrate to summon any person as a witness, though not summoned and this power is not subservient to the provisions of section 241-A (2) but the fact remains that this power was never exercised by the learned trial Magistrate. The order dated 5-4-1977 reads as under;-- It is obvious that this order does not embody any reason and section 540 was not even present to his mind. This provision of law, therefore, cannot be pressed into service to sustain such a laconic order.
7. The accusation that Humayun and Muhammad Afial are ex-husbands of the respondent ha3 been denied by her learned counsel. It is argued by ,him that before passing the order dated 5-4- 1977, she was not heard and since she denied that these two witnesses were her ex-husbands, this order worked to her prejudice. There is some merit in these submissions. The contention that as the respondent did not object to the order dated 5-4-1977 and thus she was precluded from raising such an objection subsequently, when one of the two witnesses commenced his testimony is not sound. Acquiescence cannot be pleaded against accused/respondent.
8. This writ petition is liable to be dismissed on another ground as well. The distinction between an error of jurisdiction and error within jurisdiction is too well known. . In Muhammad Hussain Munir v.
Sikanda and others PLD 1974 SC 139it has been laid down that :- " . . . . It is well settled that where a Court or a tribunal has jurisdic--tion and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneouse decision on a question of fact of even or law . . . . . . "
It cannot hardly be denied that the learned Additional District Judge was possessed of the jurisdiction to hear the revision. The order passed by him does not suffer from any illegality much less a jurisdictional error, to justify invocation of writ jurisdiction.
For the foregoing reasons this writ petition having been found without any merit is dismissed, leaving the parties to bear their own costs.