This is a revision .Petition under section 493, Cr. P. C. By Mr. Mahmood Ali Kasuri, petitioner, against the order of an Additional Sessions Judge, Lahore, dated 7-8-1967 dismissing the petitioner's application under section 435, Cr. P. C. Against the order of a Magistrate at Lahore dated 22-2-1967.
Closing the defence of the petitioner.
2. The brief facts of the case are that the petitioner is being prosecuted in the Court of a Magistrate at Lahore on a charge under section 13 read with subsections (2) and (10) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960. The allegation against the petitioner is that on 22-0-1963 the petitioner refused to be interrogated by Mr. Ijaz Hussain, D. S. P. And by such refusal disobeyed the order dated 21-4-1965 issued by the Deputy Inspector-General of Police, Special Branch, Lahore, and thereby committed the offence imputed to him.
3. After the close of the prosecution evidence, the defence was called upon to produce its evidence on 8-2-1967. Originally the petitioner submitted a list of 19 defence witnesses, but gave up nine and added one more to the list, namely, Begum Jehan Ara Shahnawaz. Notwithstanding many adjourn- -ments, on which no defence witness was produced, only six defence witnesses were produced till 22-2-1966, on which date the learned trial Magistrate closed the defence case. The petitioner preferred a revision petition against the said order before the Sessions. Judge, under section 435, Cr. P. C. Which was dismissed. The petitioner then moved a second revision against the same, which was admitted by a Single Judge of this Court on 21-9-1967 and which is now before me for disposal.
4. The learned counsel for the petitioner, in support of his petition, has submitted that the under- noted witnesses remain to be examined in defence, namely :- "(1) Mr. Ahmad Saeed Kirmani.
(2) Mr. Mahmud Ali, Ex-M. N. A., Dacca.
(3) Sardar Attaullah Mengal, Ex-M. N. A.
(4) Begum Jehan Ara Shahnawaz, and
(5) Mian Arif Iftikhar."
It is submitted that Begum Jehan Ara Shahnawaz is dead and the evidence of the remaining witnesses is necessary in the interest of justice and that the trial Magistrate did not take serious steps to serve them before closing the defence case.
5. Learned Assistant Advocate-General, Punjab, who appeared for the State, strongly opposed the petition. He submitted that the petitioner had been provided more than many opportunities to produce his defence witnesses, but on one pretext or the other he did not care to either have them serve or to produce them personally, with the result that the trial Magistrate legally and justifiably closed the defence evidence. He further submitted that before the learned Additional Sessions Judge, Lahore, the petitioner was called to file a list of the gist of evidence which the petitioner proposed to adduce through these witnesses in defence, which list was supplied, from which the learned Additional Sessions Judge concluded that their evidence did not appear to be relevant. In these circumstances it was submitted that not only were the witnesses immaterial but their statements also did not appear to be relevant to the case and that the defence had had sufficient opportunity to produce these witnesses, which it bad failed to do. In view of this matter, it was submitted that the revision petition should be dismissed.
6. It cannot be denied that the learned trial Magistrate adjourned the case on many occasions for failure on the part of the petitioner to produce his defence witnesses, but also it cannot be denied that the witnesses whom the petitioner wanted to produce were persons of status and influence, not related to the petitioner, and who would not otherwise have appeared without a summons from the learned Magistrate. As regards Mr. Ahmad Saeed Kirmani, it appears he was served earlier but he did, not appear a he was busy before another Court. After his appointment as a Minister, a letter of request was sent to him by the Court, but he did not voluntarily present himself to give evidence. After ceasing to be a Minister, it does not appear that he was served. Mr. Mahmud Ali, Ex- M. N. A. Of Bengal, was issued summons on 21-1-1967, which he received at Dacca on 3-2-1967 for 7-2-1967. He sent a telegram, for a date in the middle of March, but no further summons were sent to him by the Court. The late Begum Jehan Ara Shahnawaz is now dead and her case, need not be considered. Mr. Arif Iftikhar Ex-M. N. A. Though issued summons for a number of dates was not served. Mr. Attaullah Mengal Ex-M. N. A. Was issued summon for 7-2-1967, but he was not served. He is now out of the country and bib case need not be considered. It appears that the Court did not pursue vigorously the question of service of summons on the said five defence witnesses. The laxity of the prosecution branch has been placed at the door--step of the petitioner, as if he was responsible for the service. The learned trial Magistrate apparently has closed the case of the defence illegally, if not in great haste. Apart from Begam Jehan Ara Shahnawaz, who is now dead and Mr. Mehmud Ali, Ex-M. N. A. Of Bengal, and Mr. Ataullah Mengal. Ex-M. N. A. Who both are now out of the country; it is in the interest of justice that Mr. Ahmad Saeed Kirmani and Mr. Arif Iftikhar be summoned by the trial Court for the purposes of defence.
7. For the foregoing reasons, this petition is partly accepted and the orders of both the Courts below are hereby set aside. The learned trial Magistrate shall now summon Mr. Ahmad Saeed Kirmani, Ex-M. N. A. And Mr. Arif Iftikhar, Ex-M. N. A. In defence of the petitioner. In case they do not appear through summons, coercive measures will be taken to -ensure their attendance.