This application in revision arises in somewhat peculiar circumstances. The applicant is facing his trial under section 302 read with section 34, P. P. C. along with two others. Mr. Wahab Khan who appears for him did not originally appear as his counsel in the Court of Session but was engaged on the 18th of February 1971. When he studied the case he felt that the proper defence to be put forward on behalf of the accused should be one of grave and sudden provocation. In the course of taking instructions, however, he learnt from his client that he had not been examined by the leamed committing Magistrate at all and that his signatures have been obtained by the Bench Clerk on a typed paper. With a view to verifying whether or not this was so, counsel inspected the file and did find that in fact there was a statement purporting to be the statement of the accused and in fact signed by him but not signed by the Magistrate at all. The nature of the statement was such that counsel felt that it would run counter to the defence that he wished to make out. For that reason and also in order to bring the fact of its not having been signed by the Magistrate to the notice of the Judge he made a statement in writing to the Court of Additional District Judge, on 22- 2-197i. I deliberately refrain from saying that he made an application as there was no prayer in the said statement for any kind of action; the attention of the Court was drawn to the actual state of affairs and the statement concludes by stating: "On getting this information, he undersigned with a view to confirm the said statement of the accused submitted an application for inspection of the file on 19-2-1971 and perusing the record was.further surprised to find that the statement of the accused Farzand Ali under section 342, Cr. P.
C. and the certificate thereunder are not signed by the learned committing Magistrate although signatures of the accused appeared thereon.
This being the situation, in view of the allegations by the accused Farzand Ali that he was not examined by the learned committing Magistrate under section 342, Cr. P. C. and that his signatures were only obtained by the Bench Clerk on a typed paper, the undersigned feels himself duty bound to invite the attention of this Honourable Court towards the said statement of the accused so that this state of affairs may not create legal complications in the smooth progress of the case."
Since the learned Assistant Public Prosecutor at that time was not in Court, the learned Judge quite properly made a note at once stating that he had seen the file and that it was perfectly true that the statement did not bear the signatures of the Magistrate. As the learned Judge himself states, the note was being made in order to avoid future complications. If the matter had concluded there, perhaps no further difficulty would have arisen, but on the next date of hearing the learned Judge passed an order, the relevant part of which is: "The learned counsel for the accused Farzand Ali pointed out the last order-sheet. in the case, dated 22-2-71 he stated that the accused is denying to have made any statement in the Court of C. M. He therefore states that this statement- would amount to no statement of the accused recorded by the Magistrate. His view, therefore, is that the committal of the accused to this Court is bad in law. With due respect to the learned counsel, I feel that this is more irregularity but not illegality as the statement in question bears the signatures of the accused Farzand Ali. However, if the A. P. P. incharge of the case for the State feels necessary he may call the Magistrate in this Court." .
As a consequence of this order the learned Assistant Public Prosecutor applied the same day, that is, the 4th of March 1971, to call Mr. S. Musharraf Ali, the Magistrate in question, for examination. To this application objection was taken by Mr. Wahab Khan on behalf of the accused that to permit summoning of the Magistrate would amount to allowing the prosecution to fill up a gap. The learned Judge, however, held that the Magistrate was being summoned in order to examine why his signature on the statement of the accused did not appear and that this would not amount to filling up a gap. He, therefore allowed the application for summoning the Magistrate.
2. It seem to me that the question before the learned Judge, which at some time or the other, will have to be decided, was one of pure fact, namely, whether the statement bearing the signatures of the accused was or was not a genuine statement under section 342, Cr. P. C. and a finding on that may well have an impact upon the eventual decision of the case. In taking it upon himself to consider whether this was an irregularity or not, the learned Judge acted at least hastily, if not more. His suggestion to the learned Assistant Public Prosecutor to examine the Magistrate amounted almost to an order, and certainly gave an appearance of the issue of fact having been precluded by what had purported to be a decision of law.
3. I am not asked to set aside these orders and say that the non-examination of the accused, if indeed there was a non- examination, upon which I do not express any opinion, rendered the commitment illegal. If I do so, I would have to set aside the commitment and clearly this can be done only by way of quashment under section 215 of the Criminal Procedure Code. Mr. Wahab Khan then wanted time to amend the petition so as to make it a petition under section 215, Cr. P. C. but since the Assistant Advocate-General, Mr. A. H. Memon, agreed to argue the matter as if it was a petition under section 215, Cr.P.C. I proceeded to hear as if it was such an application. The learned Assistant Advocate-General has brought to my notice the case of Kadir Bux and others v. State (1).
In this case the statement of the accused was not recorded in the committing Magistrate's Court at all. Nevertheless the commitment took place and the commitment was then challenged by means of a revision petition to the High Court and, then having failed, by means of a petition for leave to appeal to the Supreme Court. Their Lordships
(1) PLD 1971 SC 694 the Supreme Court held that a commitment is legal even though the accused has not been examined. The following passage from their Lordships' judgment is instructive : "In our view no word used in a legislative provision can be regarded as a superfluity, and a meaning must be given to it. The word 'if necessary' employed in section 209 confer a discretion on the committing Magistrate to examine the accused person for the purpose of enabling him to explain any circumstances appearing in the evidence against him, and to consider whether sufficient grounds do not exist for committing him for trial to the Session Court. The words "if any" used in section 210 having a different connotation from the words "if necessary" used in section 209 presuppose for purposes of making an order of commitment of the accused person for trial that the committing Magistrate has considered the necessity or otherwise of that examination. He can thus commit the accused person after he has recorded the prosecution evidence without the need for him to examine the accused person also. This construction of sections 209 and 210, Cr. P. C. in regard to the examination of an accused person for purpose of his commitment by the committing Magistrate, is in conformity with the nature of the function of the committing Court in holding the pre-trial inquiry."
I cannot, agree, therefore, that the failure to examine the accused person would render the commitment illegal so as to justify its quashment. Mr. Wahab Khan, however, pointed out that such is not the case before me. In the present case there is a purported statement but it does not bear the signature of the Magistrate. I do not think that this makes a material difference. Either the accused was in fact duly examined even though the Magistrate failed to append his signatures to his examination or he was not examined at all. In the former case this might well be a mere irregularity while in the latter case the decision of the Supreme Court is plainly attracted and I am bound to hold accordingly.
4. Mr. Wahab Khan then went on to contend that difficulties would arise by section 287 under which the statement of the accused duly recorded by the Magistrate has to be tendered and reads as evidence. This aspect of the case also was examined in the Supreme Court case and their Lordships held: "This is a wholly fallacious argument, as section 287 merely envisages evidentiary value for such a statement if recorded by the committing Magistrate but without ordaining any necessity for doing so. If the statement itself is non-existent, section 287 will have no application whatsoever."
Plainly, therefore, the question is, whether or not, there was a statement. This is an issue of fact which must, at some stage, be decided by the Sessions Judge. He will, upon the evidence before him, come to a proper conclusion whether or not the accused has been previously examined and if so, whether his statement was correctly recorded or is merely a piece of typed paper which does pot reflect tfle accused's statement at all. I must clearly emphasise for the learned Judge's guidance that this is a pure question of fact to which he shall apply his mind carefully and not confuse it with the question of law nor that this was regularly done or irregularly done.
5. ' With the above observations, I dismiss the application. .