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Criminal Revision Application No. 176 of 1967, decided on 17th October 1967.

S. 257‑Application to compel attendance of witness for cross‑examination by accused Cannot be rejected merely on ground that applicant had got opportunity to cross‑examine witness‑Magistrate's order not saying that application was for purpose of vexation or delay or for defeating ends of justice‑Magistrate's order set aside and witness ordered to be summoned for cross‑examination.

M. M. Pirzada for Applicant.

Rustom J. E. Kaikobad for Respondents.

Date of hearing : 17th October 1967.

This is a revision application filed against the order of Additional Sessions Judge, Karachi, dated the 4th July 1967, rejecting the appeal of the applicant regarding summoning of witnesses Nos. 1, 2 and 3 for cross‑examination under section 257, Cr. P. C. It arises out of the following facts:

2. Witnesses Nos. 1, 2 and 3 were examined on behalf of the prosecution on 19th February 1966, in a case pending against the applicant tinder section 420, P. P. C. These witnesses were not cross‑examined. After charge was framed, the applicant made an application under section 257, Cr. P. C. for summoning five witnesses in defence, out of whom witnesses Nos. 1, 2 and 3 who were examined by the prosecution on the 19th February 1966, were also called. The learned Magistrate rejected the application of the applicant on the 2nd May 1966 on the ground that witnesses Nos. 1, 2 and 3 had not been cross‑examined although an opportunity was given to the applicant to cross‑examine them. He rejected the prayer for summoning witnesses Nos. 4 and 5 because they had not been examined by the prosecution. Revision against this order was filed which came up before the learned Additional District and Sessions Judge, Karachi who by his order dated the 4th July 1967, allowed the appeal of the applicant with regard to witnesses Nos. 4 and 5 who were accordingly directed to be examined under section 257, Cr. P. C. He rejected the appeal of the applicant with regard to witnesses Nos. 1, 2 and 3 because, according to him, they had been examined by the prosecution and were not cross‑examined.

3. It is an admitted position that the application to summon all the five witnesses was made under section 257, Cr. P. C., which reads as follows :‑

"(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; other than a witness whom the accused has cross‑examined for the purposes of examination or the production of any document or other thing, the Magis trate shall issue such process unless he considers that such application should be rejected 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.

(2) The Magistrate may, before summoning any witness on such application require that his reasonable expenses incurred in attending for the purposes of the trial be deposited in Court."

Thus this section will clearly indicate that the Magistrate is bound under this section to compel the attendance of witnesses who have not been cross‑examined to be summoned for cross examination on an application under section 257 unless he is of the view that the application has been made for the purpose of vexation or delay or for defeating the ends of justice. He is to record such ground in his order. There is, however, nothing is this section to say that the application shall be rejected if an opportunity has been given to an accused person to cross‑examine a witness before charge. The order of the learned Magistrate dated the god May 1967, obviously does not say; that the application under section 257 made by the applicant was, for the purpose of vexation or delay or for defeating the ends of justice In the event of no such ground having been mentioned in the order, the Magistrate could not reject the application merely because the applicant had got an opportunity to cross‑examine the witness. Section 257 Cr. P. C. enjoins that a witness shall be called if he has not been cross‑examined. Witnesses No. 1, 2 and 3 admittedly were not cross‑examined by the applicant; they should, therefore, have been summoned.

4. In these circumstances I accept the revision application and direct that witnesses Nos. 1, 2, 3 shall also be summoned for cross‑examination under section 257, Cr. P. C. The revision application is thus allowed.

Revision allowed.

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