This is a revision petition by one Karamat Ilahi of Gujrat, against the order of Mr. Safdar Ullah, Section 30 Magistrate, Gujrat, dated 29-12-1971 in which he rejected the plea of the petitioner to summon Dr. Bashir Ahmad Medical Officer, Gujrat at present stationed of Karachi.
The facts of 'the case, in brief, are that the petitioner was challaned along with his brother, in a case under section 307 read with section -34 of the Pakistan Penal Code. He filed a cross-complaint under sections 307, 325 read with sections 149 and 148 of the Pakistan Penal Code, against respondents Nos. 2 to 6. Both the cases were being heard by Mr. Safdar Ullah. The doctor, who examined the injured person, was common fax both the cases. However, for reasons best known to the learned trial Magistrate, he examined the doctor in the challan case, and did not do so in the complaint case. The latter case was fixed urn 28-12-1971 for J0-12-1971 and it was made clear to the complainant that no further opportunity would be allowed to him. The latter, therefore, applied to the Magistrate eon the following day for summoning the doctor, who had examined the petitioner, ire respect of his injuries.
3. The complainant's case is that the learned Magistrate directed-complainant to deposit an amount of Rs. 600 as the expenses for 'summoning the doctor. He obtained his signatures on the order. However, being pour-, the complainant could not deposit the money. He applied for a copy of the order of the Magistrate to prove the High Court. When he gut the copy, he was surprised to find that the Magistrate had scored off the previous order and had replaced it by a fresh order purporting to dismiss his application altogether.
4. The grievance of the complainant is that the doctor was, a necessary witness. He eras an expert and the' case being cognizable and non-bailable, under the Rules and Orders of the Lahore High Court, Volume ITT, Chapter 9-A, rule 1, the Magistrate was bound to summon hires at State expense.
He has also a grievance that the order, once passed by the Magistrate, could not have been changed without hearing him. Unfortunately the Magistrate admitted in his explanation in Criminal Miscellaneous Petition No. 19/T of 1972, that .He did change the order, when he came to know that on an earlier occasion, the complain--ant had moved an application before his predecessor for summoning the doctor and an order had been passed. Be it as it may, there is no denying the fact, that the doctor was a necessary witness. The case is cognizable and non-bailable. Normally; therefore, it was the duty of the Magistrate to have summoned him at State expense. Wore prong further. I may observe that this very doctor was examined as a prosecution witness in the cross challan case. If the Magistrate had been vigilant, he should have examined him in this case also on the day, 30 as not to burden the State with extra expense. I am mindful of the fact, that the Magistrate was trot expected to summon sill the complainant's witnesses at State expense and generally in a private prosecution, the complainant himself pays the expense of the prosecution witnesses. But in a case like this, when the doctor bad been transferred from Gujrat to Karachi, and hi testimony was essential for the disposal of the matter, it was the bounden duty of the Magistrate to have summoned him at State expense, under the aside Court Rules and Orders mentioned above.
5. Section 544 of the Code of Criminal Procedure provides' subject to any rules made by the Provincial Government, and' Criminal Court may if it thinks fit, order payment, on the part of Government; of the reasonable expenses of any-complainant or witness attending for the purpose of any inquiry, trial or other proceeding before such Court tender this Code". The High Court, as has been indicated above has framed Rules with the previous sanction of the Provincial Government under section 54 (2)(c) of the Criminal Procedure Code. Thus High Court into considera--tion the circumstances of this particular case, I would hold that it was unreasonable to burden the complainant with the costs of the doctor or to straightaway reject his application for' summon-- ing him: I would allow the petition and direct that the doctor shall be summoned at State expenses preferably for a day, when he is to be cross-examined in the challan case, so as to avoid extra payment by the Government.