Muhammad Hanif along with six others has been committed to the Court of Session to stand his trial under sections 148 and 452 read with section 149, P. P. C. Actually, there were 15 accused out of whom 8 have been discharged by the learned Magistrate.
2. The dispute was about the possession of a house and it is said that after being dispossessed the accused party in this case went variously armed and trespassed into the disputed property. In the combat that ensued, Mst. Perveen Akhtar the niece of Abdullah, one of the accused in this case, met her death. A murder case was registered against the opposite-party and the case was committed to the Court of Session. The learned Magistrate has also ordered the commitment of the present accused to the Court of Session in view of the consideration that the facts involved in both the cases were common.
3. This application has been filed under section 561-A, Cr. P. C. Which is not directly applicable as section 215, Cr. P. C., specifically deals with the setting aside of commitment proceedings.
According to that section, a commitment is to be quashed only if there is an illegality attached to it.
The illegality pointed out by the learned counsel is that the learned Magistrate without giving an opportunity to the accused to produce their evidence which they had a right to do under section 208, Cr. P. C., committed them to the Court of Session.
4. I called for, the record and I find that the statements of the accused were recorded on 31st of July 1970, and on 1st of August 1970. The case was- then adjourned to 3rd of August and then to 4th of August for arguments. Now section 208, Cr. P. C. Does envisage the production of evidence by the accused and if he requires that evidence to be summoned he can apply to the learned Magistrate under subsection (3) of that section The order-sheet shows that the learned counsel of the accused were present on all these hearings and there is no indication on the record that they indicated to the Court that before proceeding with the arguments the Court should record their evidence. The statements of the accused were again recorded after the charge on 4th of August 1970, and they stated that they would produce the list of defence witnesses in the Sessions Court.
The record, therefore suggests that the plea now taken by the accused that they were not permitted to produce their evidence under section 208, Cr. P.C. Is an afterthought. The reading of section 208, Cr. P. C. Clearly shows that it is for the accused to produce the evidence and if during the proceedings it was not indicated to the learned Magistrate that the accused wanted to produce evidence under section 208, Cr. P. C., it cannot be said that the Magistrate has committed any illegality or irregularity. I, therefore, do not find any substance in this petition which is, hereby, dismissed. The record to be sent back to the Court concerned immediately.