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Criminal Miscellaneous No. 885 of 1967, decided on 14th July 1967.

Ss. 211 & 291--Defence witness in Sessions trial not named in list submitted under S. 211‑Witness sought to be examined not present in Court-- Court under no obligation to grant adjournment to accused to examine such witness‑[Bhup Lal and others v. Emperor A I R 1933 P C 43 ref.].

S. 540‑Court bound to examine witness essential to just decision of case‑Witness as to alibi sought to be summoned by accused after Court had closed defence and case was fixed for arguments next day‑Held, that evidence of witness was material and essential to just decision of case and Court had erred in law In refusing to examine such witness‑ [Nikhunia Behari Das v. Nurul Absar and others P L D 1963 Dacca 360 ; Ramijiwan v. Maddye Khan and another A I R 1952 Raj. 99 and Ram Bali‑ and others v. State. A I R 1952 All, 289 ref.].

S. 526 (1) read with S. 540‑Transfer of case not ordered where bona fides of Court were not questioned but Court had refused to summon a defence witness, in murder trial, under S. 540 application for summoning whom was made when case was fixed for arguments‑Tendency to express lack of confidence in high judicial officers on flimsy ground‑Need to curb such tendency‑Each case to depend on its own merits [Ghulam Qasim v. Langra and others P L D 1957 Pesh. 109 ref.].

Hafeez‑ur‑Rehman for Petitioner.

Raja Said Akbar Khan, Advocate‑General for the State.

Date of hearing : 14th July 1967.

This order will dispose of Criminal Miscellaneous Nos. 885 and 1023 of 1567, seeking transfer of two connected cases pending trial in the Court of Mr. Muhammad Khurshid, Ex‑officio Additional Sessions Judge, Dera Ghazi Khan.

2. The short background of the petitions is that a case under sections 302/307/148/149, P. P. C. is pending trial in the Court of the Additional Sessions Judge against Gahna Khan petitioner in Criminal Miscellaneous No. 885 of 1967, and twenty‑eight others for the alleged murder of five persons besides injuries to several others. Also pending before the same Court is a cross‑complaint under sections 307/148/149, P. P. C. filed by Punnun Khan, petitioner in Criminal Miscellaneous No. 1023 of 1967. Before the commencement of the proceedings, however, an application was made by Gahna Khan petitioner for summoning two defence witnesses, namely, Mir Balaksher Khan Mazari and Sardar Shams ud‑Din Khan Mazari whom he wanted to produce in support of his plea of alibi. The learned trial Judge handed over dasti summonses to Galina Khan petitioner on an undertaking to get the witnesses served and produce them in Court on "2nd February 1967 on his own responsibility. From the averments made in the petition, it appears, that Sardar Shams‑ud‑Din Khan Mazari could not be contacted, while the other witness Mir Balakhsher Khan Mazari was expected to arrive from Karachi on 23‑2‑1967, i.e. the date fixed for his production. However, Mir Balakhsher Khan did not appear during Court hours and the learned trial Judge closed the petitioner's defence and adjourned the case to the 25th of February 1967 for arguments. The cross complaint filed by Punnun Khan petitioner was listed for hearing for the 24th of February 1967. Before the commencement of the proceedings, Gahna Khan petitioner presented an application to the learned trial Judge under section 540, Cr. P. Code 'with a request that Mir Balaksher Khan Mazari should be examined in the interest of justice. On this application an endorsement was made by the learned trial Judge to the effect that it should come up for orders on the 25th February 1967. This endorsement, which virtually amounted to a refusal on the part of the learned trial Judge to examine Mir Balakhsher Khan Mazari as a defence witness made Gahna apprehensive that the members of his party who were accused in the murder case would not have a fair trial at the hands of the learned trial Judge who was intimated about the petitioner's intention to move the High Court for the transfer of the cases. Consequently the two petitions seeking transfer of the cases were filed in this Court.

Criminal Miscellaneous No. 885 of 1967 came up before me on 17th March 1967, when I stayed further proceedings in the case and called for a report from the learned trial Judge along with his parawise comments. Crl. Misc. No. 1023 of 1967 came up before my learned brother Shameem Husain Kadri on 27th March 1967, in which the same order was repeated.

3. Since the allegations in both the cases were the same, only one consolidated report has been submitted by the learned trial Judge along with his parawise comments. He has also taken care to submit a copy of the order passed by him on 23rd February 1967, declining to grant an adjournment to the petitioner for the production of Mir Balakhsher Khan Mazari and thus closing his defence.

4. In the report the correctness of the factual position as alleged by the petitioner has not been denied. It is frankly admitted that in his statement before the learned trial Judge, Gahna, petitioner had taken up the plea of alibi and stated that at the time of occurrence he was with Mir Balakhsher Khan Mazari. It is also admitted that the petitioner sought an adjourn ment on the 23rd February 1967 with a view to enable him to produce this witness which was declined. Likewise, the submis sion of an application under section 540 of the Code of Criminal Procedure for the examination of the witnesses is also admitted. The position taken up by the learned trial Judge, however, is that since the petitioner did not submit a list of defence witnesses in the Court of the. Committing Magistrate as required by section 211 of the Code of Criminal Procedure, as such he was not bound to examine Mir Balakhsher Khan Mazari which inevitably necessitated the adjournment of the ease which was pending for more than two years. It is further stressed in the report that it was on the assurance given by the learned counsel for the petitioner that dasti summonses were issued and handed over to Punnun Khan petitioner who took upon himself the responsibility of the production of witnesses. The report further goes on to say that the learned trial Judge waited for Mir Balakhsher Khan Mazari on 23rd February 1967 who did not turn up till the last moment. The assertion made by the petitioner that Mr. Mazari was at Karachi and was expected to arrive from there on the 23rd February 1967 has been disbelieved by the learned trial Judge.

5. Learned counsel for the petitioner while admitting that no list of witnesses had been submitted by his client under section 211, Cr. P. C., has strenuously contended that the learned trial Judge was under an obligation to examine Mr. Mazari as a defence witness in the interest of justice, and as such, the refusal on his part to make such an order on the petitioner's application under section 540, Cr. P. C. was sufficient to shake his confidence in the fairness of the learned trial Judge.

6. For the disposal of these petitions, two points which essentially fall for determination are; firstly, whether the order passed by the learned trial Judge closing the petitioner's defence and refusing to examine Mir Balakhsher Khan Mazari was a proper, judicial and a valid order under the law. Secondly, if the finding on the first issue is in the negative whether the facts and circumstances of the case would warrant an order of transfer., Even at the risk of repetition, it may be observed once again that the view taken by the learned trial Judge clearly is that since the petitioner had failed to submit a list of defence witnesses under section 211, Cr. P. Code, he was under no obligation to examine, the witnesses after the close of defence. This approach has been clearly stated both in the report submitted by the learned trial Judge as well us in the order dated the 23rd February 1967, rejecting Gahna Khan's prayer for an opportunity for the production of a defence witness and closing his defence.

6‑A. Before proceeding to consider the correct legal position in this regard, it would be advantageous to reproduce the relevant statutory provisions, namely, sections 211, 291 and 540 of the Cr. P. Code. Section 211 comes into operation at a stage when the inquiry Magistrate has framed a charge against an accused person and the charge has been read and explained to him. It reads thus :‑‑

(1) The accused shall be required at once to give in orally or in writing, a list of the persons (if any) whom he wishes to be summoned to give evidence on his trial.

(2) The Magistrate may, in his discretion, allow the accused to give in any further list of witnesses at a subsequent time ; and, where the accused is committed for trial before the High Court, nothing in this section shall be deemed to preclude the accused from giving, at any time before his trial, to the Clerk of the State, a further list of the persons whom he wishes to be summoned to give evidence on such trial."

The next section 212, gives the Magistrate a discretion to summon and examine any witness named in any list given to him under section 211. Section 213 empowers the Committing Magistrate to discharge an accused person after hearing the witnesses for the defence in case he is satisfied as to the non‑existence of sufficient grounds for committing the accused, or alternatively to commit him for trial if he has declined to submit a list of witnesses under section 211, or if submitted, some of the witnesses have been examined by the Magistrate in his discretion. The next relevant provision is contained in section 291. It deals with the summoning of the defence witnesses and the restrictions on the examina tion of a witness not included is the list submitted by the accused and reads thus : ‑

‑The accused shall be allowed to examine any witness not previously named by him, if such witness is in attendance ; but he shall not., except as provided in sections 211 and 231, be entitled of right to have any witness summoned, other than the witnesses named in the list delivered to the Magistrate by whom he was committed for trial"

From the plain reading of this section, three inferences could be clearly deducible, firstly that an accused person is entitled as of right to examine a witness in his defence any person who is present in the Court, notwithstanding the fact that he was not named in the list submitted by the accused under section 211; secondly; that the Court is bound to summon witnesses named in the list furnished by the accused under section 211, Cr. P. Code, and thirdly ; that an accused cannot insist as of right to summon a defence witness not included in his list. As a corollary from No. 3, it would also follow that an accused could not insist on the grant of an adjournment to enable him to examine a witness not named in the list. It maybe observed in passing that the analysis of the provision contained in section. 291 vis‑a‑vis section 231 being irrelevant in the instant case s left out of consideration. Since, however, in the instant case, Mir Balakhsher Khan Mazari, a witness not included in the list but sought to b examined was not present in Court on 23rd February 1967, the date fixed for examination of the defence witnesses, the learned trial Judge was under no obligation to grant an adjournment to Gahna Khan, petitioner. To this extent, therefore, his order dated 23rd February 1967 is unexceptionable and finds full support from Bhup Lal and others v. Emperor (AIR 1933 PC 43). It was clearly held in this case by their Lordships of the Privy Council that under section 291 there was no right in the defence to have a witness brought before the Court who was not on the defence list. It was, however, observed that the defence could apply if it thought right to do so under section 540, Cr. P. Code. Since in the instant case, an application was also submitted before the learned Additional Sessions Judge under section. 540. Cr. P. C. for the examination of Mir Balakhsher Khan Mazari. it is in the light of the provision contained in this section that the validity of his order refusing to summon this witness is to be considered. Section 540, Cr. P. Code reads as follows :‑

.‑Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not sum moned as a witness, or re‑call and re‑examine any person already examined ; and the Court shall summon and examine or re‑call and re‑examine any such person if his evidence appears to it essential to the just decision of the case."

The section, on analysis would yield the following inferences :

(i) That during an inquiry, trial or other proceedings under the Criminal Procedure Code, any Court has the discretionary power to summon any person as a witness ;

(ii) it may examine any person in .attendance though not summoned as a witness ;

(iii) it may re‑call, re‑examine any person already examined ; and

(iv) that this summoning, examination, re‑calling and re examination, may be resorted to at any stage of inquiry, trial or proceedings as the case may be.

(a) that if the evidence of such a witness appears to the Courts essential to the just decision of the case, it is bound to summon; re‑call and re‑examine such a witness.

Obviously this provision throws a flood of light on the sensitivity of the law‑makers to the sanctity of human life and liberty. The provision‑contained in section 540 is a clear manifestation of the extraordinary care and caution to jealously guard these right where there has been a deliberate or accidental lapse or omission on the part of the prosecution or the defence. The second par of the provision obviously casts an obligation on the Court to intelligently apply its mind as to whether the examination of a certain witness would be essential to the just decision of the case. There is a chain of authorities for the proposition that there should be a proper and judicial application of mind in the exercise of the Courts discretion in the invocation of section 540, Cr. P. Cods. It is certainly not to be exercised with a view to help the prosecution to fill in the lacuna in its case to the pceiudice of the accusers. In Nikhunia Behari Das v. Nurul, Ahsar and others (P L D 1963 Dacca 360) after having. considered numerous authorities under this section, the learned Judge set aside the order of the Magistrate refusing to examine certain witnesses under section 540, without giving the reasons which weighed with aim : n reaching the conclusion. It was held by his Lordship that the impugned order did not indicate the proper and judicial application of the mind of the Magistrate as to whether the examination of those witnesses was essential for a just decision in the case. In an Indian case Ramijiwan v. Maddye Khan and another (A I R 1952 Raj. 99), it was observed as follows:

"Under section 540 it has been obligatory upon the Court to summon said examine or re‑call or re‑examine any person as a witness whose evidence appears to be essential to the just decision of the case."

In a some what similar case, it was observed by Desai, J. who delivered the D. B', judgment in Ram Bali and others v. State (A I R 1 952 All. 289) as follows :‑

"I cannot help feeling that the sessions Judge himself should have examined him under section 540, Criminal P. C. A Sessions Judge is expected to try a criminal case intelligently and not leave everything in that hands of the Public Prosecutor and the defence counsel. It is his duty to find out whether the examination of any witness would be necessary in the interests of justice or not. He is bound to examine any witness whose evidence he considers essential in the interests of justice. He cannot evade this statutory responsibility by omitting to thought to the question whether the evidence of any witness left out by the parties is essential or not."

It is by this standard that the validity of the order of the learned Additional Sessions Judge, refusing to examine the witness in question is to be judged. As frankly admitted in they report submitted by the learned trial Judge, Gahna Khan, petitioner, while raising the plea of alibi had clearly stated that at the relevant time, he was with Mir Balakhsher Khan Mazari, the witness in question It was argued by the learned counsel for the petitioner that Mr. Mazari was the Chief of his tribe and a respectable person, being also at one time a member of National Assembly of Pakistan. It is also clear that the witness was prepared to come to the witness box, presumably with a view to support the plea of alibi. Regardless of this whether on examina tion he had, or had not supported this plea, the fact,, however, remains that his evidence was undoubtedly material and essential to the just decision of the case. The possibility of his making a favorable statement to the petitioner cannot be ruled out, who if believed, might possibly have the effect of saving one or more persons from the gallows, It is really strange that such a patent essentiality should have escaped the notice of the learned trial Judge. Having considered his order and the report I cannot avoid the impression that the view taken by the learned Judge was erroneous in law inasmuch as, he had not appreciated the question from this aspect. It appears to me that he did not apply his mind to the question of the material pertinence of the evidence of Mr. Mazari, which was undeniably essential for the just decision of the case. In this view of the matter, I am clear that the learned trial Judge has erred in law in refusing tot examine the witness. This position was readily conceded by the learned Advocate‑General.

7. The next question that falls for determination is whether in these circumstances, the cases should be transferred to some other Court. A perusal of the grounds taken in the two petitions, clearly show that but for the bona fide mistake committed by the learned trial Judge, on a question of law, which has been challenged, there is not even an oblique hint to his impartiality or unfairness. The learned Judge is the highest judicial authority at the district level, whose bona fides are not questioned. No doubt it is well settled that justice should not only be done, but should manifestly and undoubtedly be seen to be done but every case has to be judged on its own merits. In Ghulam Qasim v, Langra and others (P L D 1957 Penh. 109) it was observed by Habibullah, J. that :‑

"The question as to what constitutes a sufficient ground for the transfer of a case is to my knowledge not governed by an hard and fast rules. Every case has to be depend on its owe merits."

Normally this Court would be reluctant to transfer cases from the Court of Sessions Judges unless there are strong and compel ling reasons to do so. Of late there appears to be a growing tendency on the part of litigants to unhesitatingly express lack of confidence even in high judicial officers on flimsy grounds which must needs be curbed. In the instant case, as stated earlier, but for the bona fide mistake on a purely legal question, there was evidently no occasion for the petitioner to move this Court for the transfer of the case. Once his grievance is redressed by allowing the production of the defence witness in question there would hardly be any occasion for him to say that the petitioner cannot have an impartial and fair trial at the bands of the learned trial Judge. When held out an assurance that the petitioner would be afforded an opportunity to examine his learned counsel did not seriously press the petition for transfer.

8. For the foregoing reasons, it is directed that the learned trial Judge should proceed with the trial of the cases, allow proper opportunity to Gahna Khan petitioner to examine Mir Balakhsher Khan Mazari as a witness in defence and dispose of the cases according to law. Since, however, the counter petition No. 1023/67 filed‑ by Pannun Khan is connected with this, peti tion it was not considered necessary to admit it to a full hearing as its fate depended on that of Criminal Miscellaneous No. 885 of 1967.

Order accordingly.

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