The learned Additional Sessions Judge, MuzafFargarh. has made this reference with the recommendation that the commit ment order dated 5th January 1967 passed against the three respondents in a murder case be set aside and fresh enquiry be ordered besides taking such action against the committing Magist rate as may be considered advisable.
2. The facts as noted in the order of reference are that after the commitment the trial started on 9th August 1967. During the examination of first four formal witnesses it transpired that certain documents like identification proceedings and supple mentary challan were not on the file. The gun which was alleged to have been used in the commission of the crime and was said to have been recovered at the instance of one of the accused persons was also not forthcoming. The Moharrir of Police Malkhana expressed his inability to find any clue of the gun in his record and asked for time.
Ultimately the learned Judge was informed that the gun in question was erroneously entered as property in case F. I. R. No. 1 9*f 1965 whereas the present case bore F. I. R. No. 19 of 1964 and coincidentally both the cases related to the same Police Station and were under the same offences of the Pakistan Penal Code. The learned Judge found the explanation as insufficient. Therefore he examined the Moharrir of the Police Malkhana as a Court witness. According to the Malkhana register it was found that the case property was received in the Police Malkhana for the first time on 15th Sep tember 1965 and remained there till January 1967 when the Moharrir delivered it to the District Nazir, Muzaffargarh and that there was no entry regarding issue of the gun for production in the Court of committing Magistrate where proceedings in the pas were held on 16th May 1966, 23rd June 1966, 4th August 1966 and 13th October 1966. On these dates some witnesses were examined by the committing Magistrate and on their state- mehts the'guil was shown to have been exhibited. The learned Referring Judge considered the statement of the Moharrir at some length along with certain Other circumstances and came to the conclusion that the gun was exhibited in the Court of the committing Magistrate without its production in the Court and without being Shown to the relevant witnesses. This according to the learned Judge was an illegality sufficient to vitiate the entire commitment proceedings. It may be mentioned that in reaching the above conclusions the learned Judge took note of the fact that the accused persons had also stated before him that the - gun was not produced in the Court when it was shown to have been "formally exhibited. He also took note of the presumption attachable to official acts in that the entries in the Malkhana register should be presumed to be correct the effect of which according to him was that the gun remained in the Malkhana and was never produced before the committing Magistrate.
3. On notice having been served on the parties concerned, the three accused /. e., respondents Nos. 1 to J submitted a joint application on 25th June 1970 stating that they had been served with a notice and that they as they put it "do hot represent the case". What probably that meant was that they are not interested in representing any point of view on the question which has been referred to this Court. In spite of notice they have not appeared in Court either to contest or to support the reference. Mr. Kamal Mustafa Bokhary the learned A. A.-G. assisted by Mr. Hameed Aslam Quresbi, Advocate has opposed the reference on the question of the fact as well as law. Mr. Pervaiz Akhtar the learned counsel who represents the complainants in the main case has also opposed the reference.
4. On factual side it must be straightaway stated that the learned referring Judge came to a conclusion without considering the entire material which could possibly be relevant to the question in issue. Mr. Saadat Nawaz Khan the learned com mitting Magistrate who has since died, it is stated at the bar, was definitely, alive when the reference was made. Therefore the learned Judge could examine the Magistrate in order to reach a definite conclusion about what happened in that Court, The Prosecuting Officer, who conducted the State case before the learned committing Magistrate was another important witness. He also does not appear to have been examined. Similarly the witnesses who made statements on oath before the committing Magistrate with regard to the gun in question were also very important witnesses. And lastly if a presumption in law could be raised in favour of a police record the learned Judge failed to give due importance to the record maintained by a Magistrate who it appears was a senior Magistrate and was exercising the powers of an Additional District Magistrate. Added to this are two more circumstances pointed out by the learned Assistant Advocate-General ; Firstly that no objection was raised by the accused persons before the committing Magistrate with regard to the. non-production of the gun. > Similarly they failed to-raise any objection before the learned Judge on or before commen cement of the trial. It appears from the opening part of the order of reference that the learned referring Judge himself noticed that the gun was not available in his Court and on account of this he started making enquiry in the matter. Furthermore the conduct of the accused persons so far as the proceedings.in this Court are concerned is also indicative of the fact they had no objection to raise in this behalf. I, therefore, have come to the conclusion that the findings on facts of the learned referring Judge are based on .insufficient material and are liable tobe seb aside on that ground. But this does not mean that the learned Judge cannot come to the same, conclusion or a different conclusion after consideration of the entire relevant material which can be legally brought before him with regard to the same issue, and then to give proper effect to the finding one way or the other if it becomes necessary.
5. On the question of law also it may be pointed out with respect that the learned referring Judge has not correctly appreciated the procedure, as provided in Criminal ProcedureCode for the trial of cases which are exclusively triable by the Sessions Court. The commitment proceedings cannot be treated as a parallel or additional pre-trial of the accused. The provisions contained in sections 208-and 286, Cr. C. P. do not at all require that the entire prosecution evidence must be produced before the committing Magistrate. This supposition is indeed supported by what is provided in section 210, Cr. C. P. which requires that when the committing Magistrate is satisfied that there are sufficient grounds for . committing the accused for trial he shall frame a charge. There is ample authority on the point that the Magistrate is not required either to weigh the evidence in the case as a trial Court or to record the entire prosecution evidence before coming to a conclusion with regard to sufficiency of grounds for commitment. Even if the prosecution fails to produce a witness who otherwise may be important before the committing Magistrate, this is no bar to the same witness being produced at the trial. In support of this view the learned Assistant Advocate-General cited a Full Bench case from Indian jurisdiction i. e. Jwala Mohan and others v. The State (l). The discussion on various points particularly the question of prejudice to the accused is not as detailed and to the point as has . been done in a Full Bench case of this Court reported as Mst. Nlamat v. Emperor (2). While overruling the earlier view taken in Sher Bahadur v. Emperor (3) it was observed (as summarised by the reporter) :-- The general effect of a consideration of sections 208 (1), 208(3), 209, 210, 211, 213, 216, 217, 219. 286 and 540, Criminal P. C. is that prosecution is at liberty to examine the witnesses in the Sessions Court which it has not produced in the Count of the committing Magistrate but that only those witnesses so examined in the committing Magistrate's Court can be bound down to attend in the Sessions Court. The
(1) AIR 1963 All. 161 (2) AIR 1936 Lah. 533
(3) AIR 1934 Lab, 667 1972] Pakistan Criminal Law Journal " -A C-t prosecution in the Sessions Court, if the witnesses are not examin ed in the Court of the committing Magistrate, has to depend upon such witnesses being willing to give evidence without being bound down to appear or upon being able to persuade the Court to act under section 540 and summon such a witness. But in accordance with the practice of tbe English Courts a summary of the evidence proposed to be called by the prosecution should be given to the Sessions Court and the accused before the trial if a witness has not been called in the committing Magistrate's Court.
There is no provision in the Criminal Procedure Code making this course compulsory but in fairness to the accused it should be followed (1889)
1. P R (Cr.) 1933 All. 690 ; 1930 Sind 99 and 1931 Bom. 517.
There is no need for any further discussion on this question Respectfully following the ruling of the Full Bench of this Court, I hold that even if it is true that the gun was formally exhibited without production in the Court of the committing Magistrate this does not vitiate the committing proceedings or the com' mitment order passed by the learned committing Magistrate and on that basis the trial commenced by the learned Judge cannot be held to be illegal and he can proceed with the same as if there was no defect or error as mentioned in the order of reference in so far as the enquiry or the commitment order is concerned.
6. There is another aspect of the matter. The commitment order as is apparent from paragraph 6 thereof is based on the eye-witness account and the recovery of certain. ornaments from some of the accused persons. The recovery of the gun has not been specifically made the basis of the commitment order.
Moreover it is provided in section 537, Cr. P. C. that no order passed by a Court of competent jurisdiction shall be reversed - or altered in appeal or revision on account of any error, omission or irregularity in the complaint.................. order, judgment or other proceedings before or during the trial in any enquiry or other pro ceedings under the Code of Criminal Procedure. In the Explanation to section 5J7 it is provided that in determining whether any error, omission or irregularity in any proceeding has occasioned a failure of justice the Court shall have regard to the fact whether the objection could or should have been raised at an earlier stage in proceedings. Therefore even if the fact pointed out by the learned referring Judge is correct and if further it is held to be an irregularity it is clearly curable under section 537, Cr. P. C. and on that basis the order of commitment cannot cither be reversed or altered or set aside in these revisions! proceedings. Looked at from whatever angle the reference made by the learned Additional Sessions Judge merits to be dismissed. It is, therefore, disposed of as dismissed.
7. This is an old case. The office shall transmit the record to the Court of the learned Additional Sessions Judge immedia tely without any delay. The learned Additional Sessions Judge will expedite the disposal and if possible give preference to this case if otherwise no other case needs to be given preference on some stronger1 grounds. 1 .