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Petition for Special Leave to Appeal No. 78‑B of 1968, decided on 23rd August 1968.
(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 11th July 1968, in Criminal Revision No. 630 of 1967).
---S. 211‑Question whether provision of S. 211 mandatory and non‑compliance renders trial illegal‑Special Leave to Appeal granted by Supreme Court to consider question.
Hamidul Haq Choudhary, Senior Advocate Supreme Court (Syed Azizul Haq, Advocate Supreme Court with him) instructed by B. C. Panday, Attorney for Petitioner.
Syed Amjad Hossain, Senior Advocate Supreme Court (A. H. Mirza, Advocate Supreme Court with him on record‑absent) instructed by S. M. Abbas, Attorney for Respondent No. 1.
Nemo for the State.
Date of hearing : 23rd August 1968.
‑The petitioner has been committed to stand his trial before the Court of Sessions by a Magistrate of the First Class of Noakhali, on charges under sections 406/408 and 467 of the Pakistan Penal Code.
The petitioner moved the Sessions Judge of Noakhali under sections 435 and 438 of the Criminal Procedure Code for the quashment of the order of commitment but the petition was rejected. The petitioner then moved the High Court in its revisional jurisdiction and contended inter alia that the order of commitment should be quashed as the Magistrate had failed to comply with the mandatory provision of section 211, Cr. P. C. and denied to the petitioner the opportunity of a second hearing under sections 212 and 213, Cr. P. C.
In support of this contention he had also relied upon the decision of this Court in the case of Moonda and others v. The State (P L D 1958 S C (Pak.) 275) where it was held that the Magistrate was under a duty under section 211, Cr. P. C. to ask the accused to give a list of his witnesses so that he may be in a position to exercise the right vested in him under section 212, Cr. P. C. to have his witnesses examined before being committed for trial.
The learned Judges of the High Court have, however, taken the view that this case did not lay down that non‑compliance with the provisions of section 211, Cr. P. C. was an illegality vitiating the proceeding, as in its view the Supreme Court had neither in this case nor in the subsequent case of Ibrahim v. The State (P L D 1961 S C 200) gone to the extent of holding the trial illegal in similar circumstances or quashing the commitment.
It is contended that the learned Judges of the High Court have not properly appreciated the purport of these decisions as one of the learned Judges constituting the Division Bench had after noting the above decisions observed that it would be presumptuous on his part "to pronounce a definite opinion in regard to the effect of the non‑compliance with the provisions of section 211, Cr. P. C." This implies that according to him also this Court had not given any clear guidance on the point. It is suggested that this view is based upon a misreading of the decisions.
The latter Judge, however, also agreed with the order rejecting the revision as in his view the petitioner had. been trying to delay the trial.
We are of the opinion that this petition raises a serious, question of law as to the interpretation of section 211, Cr. P. C. and the two above‑mentioned decisions of this Court. Leave is accordingly, granted to consider the above question.
During the pendency of the appeal in this Court further proceedings will remain stayed in the Court of Sessions.
Leave granted.
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