1. This application under section 215, Cr. P. C. Seeks the quashment of the commitment order dated 14-12-1970 passed by Ch. Imtiaz. Ahmad Sadiq, Magistrate Ist Class, Jaranwala, District Lyallpur by which he committed the three accused to the Court of Session to stand trial for an offence under section 302/34 P. .P. C. For having murdered Muhammad Nawaz in furtherance of their common intention.
2. I have heard the learned counsel for the parties. Ch. Aziz Ahmad Bajwa, the learned counsel for the petitioners, assailed the impugned order on the ground that it had been passed in violation of the mandatory provisions of sections 208, 211 to 213. Cr. P. C. He contended that before the prosecution evidence was closed the petitioners had made an application before the learned Magistrate under section 208, Cr. P. C. That the witnesses of the prosecution, who had been Oven up, should be summoned in their defence but this application was rejected. He next contended that after the petitioners were charged it was the duty of the learned Magistrate to have asked the petitioners to submit the list of their witnesses and no sooner it was done than he should have considered whether he was to summon and examine those witnesses in defence as envisaged by section 212, Cr. P. C. The grievance is that the mandatory provisions of this section were violated and consequently for this and for the reasons mentioned earlier the impugned order is illegal and has to be set aside: The arguments in this case were firstly heard on 9-3-1971-- when it was realised that without the evidence of the committing Magistrate the controversy in regard to the above facts could not be resolved. Therefore, when the case came up for further arguments on 10-3-1971 it was directed that Mr. Imtiaz Ahmad Sadiq, Magistrate 1st Class, Jaranwala, who had passed the commitment order, should be summoned as witness to give evidence in this case. In response to the notice sent to him the learned Magistrate appeared on 24-3-1971 when he was examined by Raja Muhammad Anwar Advocate and cross-examined by Mr. Bajwa, the learned counsel for the petitioners. The conclusion which can be drawn from his evidence is that the petitioners had fired an application before him under section 208, Cr: P: C. On 14-12-1970 before the prosecution evidence was closed and further that before the charge was framed against the petitioners they were examined under section 342, Cr. P. C. And questioned whether they would like to produce any evidence and their reply was that they would produce their evidence in the Court of Session. It is, therefore, clear that the learned Magistrate before whom the petitioners had filed their application under section 208, Cr. P. C. Was obliged to summon the witnesses mentioned therein unless for reasons to be recorded (as envisaged by subsection (3) of that section) he deemed it unnecessary. The order of the learned Magistrate by which he declined to summon the witnesses of the petitioners was passed by him in the exercise of jurisdiction under subsection (3) of section 208, Cr. P. C. And reads as under :- "The case has become very old and the Honourable High Court has directed that it should be disposed of within six weeks of the order dated 4-11-1970. In the circumstances it is not desirable to call the witnesses at the present stage."
2. The admitted position, according to the learned counsel for the parties is that the occurrence m this case had taken place on 23-3-1968 and the final challan submitted to the Court of the Magistrate on 13-2-1969 but in spite of the long delay the inquiry proceedings were not finalised.
3. The delay in question was noticed by this Court during the hearing of Cr. M. No. 7454 of 1970 in which the bail granted to the petitioners was sought to be cancelled. This application was dismissed on 4-11-1970 with the following observations :-- "The learned counsel for the parties pointed out that in this case about to years have elapsed and still the commitment proceedings have not finalised. I think that this is extremely unreasonable, even assuming that the committing Magistrate was preoccupied in many other cases. In this view I would direct that the entire commitment proceedings should be com--pleted within six weeks as of date, without fail, under intimation to this Court. In order that this should, be done the learned Magistrate would not grant any unnecessary adjournments and if necessary secure the attendance of witnesses, by resort to powers under the Criminal Procedure Code, by coercion."
4. These being the admitted facts the question arises if the order of the learned Magistrate dated 14- 12-1970 by which he dismissed the petitioners' application under section 208, Cr. P. C., can be said to be in violation of the provisions of section 208, Cr. P. C. 7 It is not denied that Magistrate has the jurisdiction to dismiss any such application under subsection (3) of that section provided he applies his mind to the facts of the case and then comes to the conclusion for which he has to give reasons that under the circumstances he deems it necessary to summon the defence witnesses.
5. Applying this principle to the facts of the case I do not see any objection to the above order of the committing Magistrate by which he dismissed the petitioners' application. After all he had applied his mind to the facts of the case and given reasons in rejecting the petitioners' application. Not only this but the reasons in question cannot be said to be perverse of unreasonable so as to contend that his order was arbitrary or without jurisdiction. If any, authority is needed for this pro--position reference may be made to the Division Bench judgment of the Patna High Court in the case of Saadat Mian and others v. King-Emperor (AIR 1927 Pat. 243). Incidentally the facts in that case were identical to the facts of the present case which would be seen from the impugned order of the Magistrate in that case which is to the following effect:- "This (petition) is filed shortly before the prosecution was going: to close its case. There is prima facie evidence for commitment of the accused for trial in the Court of Session. The case is long pending and I consider it unnecessary to examine any witness for the defence at this stage."
6. The objection to the impugned order in that case was also grounded in section 208, Cr. P. C. But the objection was repelled with the following observations:- "Therefore, it is imperative upon the Magistrate to examine any witness produced on behalf of the accused. In order to assist the prosecution as well as the accused clause (3) of the section provides that the Magistrate shall issue processes in order to compel the attendance of their witnesses. The Magistrate, however, can refuse it `for reasons to be recorded' when he considers it to be unnecessary to do so. The Magistrate has in the present case given reasons for refusing the prayer to summon the witnesses for the defence. He has, therefore, exercised the discretion vested in him by clause (3) of the section. He has given to 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 pro--cedure 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."
7. I respectfully agree with this interpretation of section 208, Cr. P. C. And consequently. Hold that the first objection of Ch. Aziz Ahmad Bajwa, the learned counsel for the petitioners, have no force.
8. As regards the second objection the admitted position is that before framing the charge against the petitioners the learned Magistrate had questioned them if they would like to adduce evidence and their reply was that they would do so in the Court of Session. In this view the consideration of the effect of sections 211 and 212-213, Cr. P. C. Would be simply academic. Ch. Aziz Ahmad Bajwa, the learned counsel, however, contended that the list of witnesses of, the petitioners was already on the file and consequently the learned Magistrate should have considered the desirability of summoning and examining them under section 212, Cr. P. C. With a view to coining to a proper con- -clusion in regard to the commitment of the petitioners to the Court of Session. Under the circumstances this contention appears to be more technical than real as once the petitioners chose not to produce any evidence in defence in the committing Court the learned Magistrate need not have asked them again under section 211, Cr. P. C. Whether they would like to submit the list of their witnesses and examine them in defence.
9. The upshot of the above discussion is that the learned Magistrate had complied with the provisions of section 208, Cr. P. C. And had also substantially complied with the require--ments of section 211, Cr. P. C. By having questioned the petitioners in their statements under section 342, Cr. P. C.
10. Whether they would like to adduce evidence in defence and their reply was that they would produce the same in the Court of Session. In this view it cannot be said that the impugned commitment order suffers from any illegality within the meaning of section 215, Cr. P. C. And consequently this petition having no force is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.