This petition for quashment under section 561-A, Cr. P. C., calls in question an order dated 12-8-1969 (Annex. 'DI) passed by a learned Magistrate, whereby he allowed application of a complainant in a challaned criminal case for the examination before charge of a prosecution witness whom the A. P.
P. Had, by a statement dated 24-5-1969 (Annex. 'A'), given up as won over.
2. Learned counsel has contended; one, that this being a challan case application of the complainant was not competent after the statement by the A. P. P".; two, that the Magistrate having passed an order with regard to giving up of a prosecution witness, he could not be examined without the said order having been challenged before and set aside by a superior Court ; three, that the only course open for the learned Magistrate in the above circumstances was to examine the witness as a Court witness under section 540, Cr. P. C.; but if he had done so, it would have been illegal because, in that eventuality, it would have amounted to filling in the lacuna in the prosecution case and that too without notice to the accused party, In this behalf, he has relied on Dr. M. Abdul Sami v. The State (P L T) 1962 Lah. 271), Muhammad Ashraf v. Zafar Mahmood,( PLD 1967 Lah. 1045) and Khushi Muhammad v. Muhammad Yousaf (PLD 1971 Lah. 169); four, that the statement of the witness was obtained under compulsion; five, that the learned Magistrate contravened the provisions of section 359, Cr. P. C., when recording the entire cross-examination in question-answer form.
3. The last two contentions are misconceived. One relates to the weight to be attached to deposition of the witness and is, therefore, irrelevant in the present proceedings ; and the other is based on the clear misreading of section 359, Cr. P. C. This provision only permits the Magistrate "ordinarily" not to take down the entire deposition in -the form of questions and answers but that does not mean that in a given case, if he records the entire statement or a major part of it in question-answer form, it would be an illegal act. Learned counsel himself admitted that in the very first question put in cross-examination to the witness, it was indirectly surmised that the learned Magistrate had not properly conducted himself in this case. That being so, it was not only proper but also in the interest of justice that the Magistrate should have recorded the disputed statement in question-answer form. His action in this behalf is unexceptionable.
4. It is not denied that the statement of the witness is not formal and is highly material and important in so far as the merits of the case are concerned. In the circumstances of the case, it was clearly possible for the learned Magistrate to hold that the evidence of the witness was essential to' the just decision of the case and could have examined him as a Court witness by making specific reference to section 540, Cr. P. C. The accused were, present when the application was allowed and the witness was examined. No separate notice was necessary in this behalf. The ruling cited by the learned counsel on application and interpretation of section 540, Cr. P. C., are not attracted to the facts of the present case. Thus, even if there was any defect in the procedure adopted by the learned Magistrate, the same would be deemed to have been cured because this Court is of the view that the witness could be examined under section 540 as well. I, therefore, find no force in this contention either.
5. The main question involved in this case is whether the learned Magistrate did, on the statement made by the A. P. P., discharge the witness as having been won over and, if so, whether after such an order he had no power to examine the witness as a prosecution witness. The file of the case placed before the learned counsel to point out whether the learned Magistrate passed any order showing that he had accepted the statement of the A. P. P., that the witness was won over. It is doubtful whether a finding of fact in this behalf, without an application by the complainant and/or the Investigating Officer, can be safely given. Be that as it may, there being no such order, it was not necessary for the complainant to have challenge4- the same before any superior Court. The statement made by the A. P. P. By itself, does not amount to an order and there was no need for the complainant to challenge it before any superior authority. In a warrant trial, before the charge, the Magistrate is required by law under section 252, Cr. P. C., to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution. In addition to this duty, the Magistrate shall also ascertain, from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary. Under section 253, after taking all the evidence referred to in section 252, and making such examination (if any) of the accused, the question of charge would beconsidered. In this case, admittedly, the application of the complainant was allowed and the witness was examined before the charge.
Even if it be assumed that the statement of the A. P. P. Had formally been accepted by the Magistrate, had enough power under section 252(2), Cr. P. C., to ascertain from the complainant with regard to the evidence which could be led in support of the C prosecution. The above legal position has the support of a Full Bench ruling of this Court in Heman Ram alias Hem Raj v. Emperor (AIR 1945 Lah. 201). The order of the learned Magistrate is indeed short but that does not mean that he was not aware of the law and his jurisdiction in this behalf.
6. The impugned order of the learned Magistrate is unexceptionable. There is no force in this petition and the same is dismissed.
Petition disallowed.