Abdul Elahi petitioner and his two sons, namely, Karamat Elahi and Maqbool Elahi are being prosecuted for an offence under section 436, P. P. C. in the Court of Assistant Commissioner, Gujrat.
11.
3. After the close of the prosecution evidence and the framing of the charge on 31-7-1971, the petitioner applied for summoning of the defence witnesses, under section 257, Cr. P. C. In this application he prayed for summoning of the seven persons, witnesses, No. 7 being Khan Muhammad Zaman, A. D. C. (G), Rahimyar Khan, who was the Revenue Officer, Gujrat at the relevant time and is said to have issued the bogus warrant of possession. Mirza Murtaza Beg Birlas, the learned trial Magistrate passed the following order on the said application:-- "Allowed except No. 7."
The petitioner filed a revision against the said order. Sh. Abdul Majid, Additional Sessions Judge, Gujrat, who heard the revision petition dismissed the same vide his order dated 17-1-1972. The relevant portions of his judgment may he reproduced here for facility of reference: "It has been stated in the application that the Court has given no reason for refusing to summon Muhammad Zaman as defence witness and that he is an important witness because the warrant of possession through which the possession was alleged to have been taken from the petitioner was issued by him and the proceedings made by him were illegal and mala fide.
I have heard the learned counsel for the petitioner. Out of eight defence witnesses the Court only refused to summon Muhammad Zaman as defence witness. The learned counsel for the petitioner has not produced any authority on the point that in refusing to summon the witness the trial Court has committed any irregularity or illegality."
Abdul Elahi petitioner has come up in revision in this Court against the above-noted order of the Additional Sessions Judge, Gujrat.
4. The contention raised on his behalf before me was that the learned trial Magistrate was bound under the law to state the grounds for refusing to summon the defence witness mentioned at No. 7, in the petitioner's application. In this behalf he relied on the provisions of subsection (1) of section 257, Cr. P. C. which read as follows:-- Section 257.--(1) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing. (Underlining* is mine).
In support of this contention he relied on:
(1) Raja Muhammad Asghar v. The, 236. *[Here in italics]
(2) The State v. Muzaffar AH and 2 others PLD 1970 Kar.
457.
(3) Saiful Kabir v. The State and another 1968 P Cr. L J 135.
5. The learned counsel for the State contended that it was not open to the petitioner to challenge the correctness of the warrant of possession. He, however, conceded that, in any case, the learned trial Magistrate should have stated the reasons for not summoning the defence witness mentioned at No. 7 in the petitioner's application, as required by subsection (1) of section 257, Cr. P. C.
6. I am also inclined to agree that it was incumbent upon the learned trial Magistrate to state the reasons for refusal, as held by the above-noted authorities. As a result I accept the revision and set aside the impugned order. The case is remanded to the learned Assistant Commissioner, Gujrat, for passing an appropriate order after hearing the arguments of the parties. .