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Criminal Revision No. 1226 of 1967, decided on 25^th November 1968.

S. 351 read with S. 213‑Person neither arraigned as an accused nor a recalcitrant witness‑Cannot be called upon to furnish security for appearance in Court‑Direction to such person to attend each hearing of case‑Held, without any legal sanction‑Magistrate without examining all witnesses afresh directing that a person mentioned in column No. 2 of challan be arraigned as an accused Commitment of such person to Sessions‑‑Held, entirely illegal.

This is a case in which six co‑accused persons named Nathe Khan (the son of Umar Din), Muhammad Ashiq (the son of Umar Din), Muhammad (the son of Umar Din), Waris (the son of Umar Din), Altar Hussain (the son of Ahmad) and Rehmat Ali (the son of Haider) were charged on 25‑5‑1967 by the Committing Magistrate with the commission of offence punishable under sections 148, P. P. C. and 302/149, P. P. C. in connexion with the alleged murder of one Rallmat (the deceased) on 6‑11‑1966 in the area of village Dadowali. These six co‑accused persons were committed to stand their trial in the Court of Session on those charges, vide the commitment order dated 25‑5‑1961. The police had submitted a challan under sections 302/34, P. P. C. against only five co‑accused persons, namely, Nathe Khan, Muhammad Ashiq, Muhammad Waris and Altar Hussain, in the Court of a Magistrate of the 1st Class in Sialkot. Apart from these five co‑accused persons the name of one Rahmat Ali (the son of Haider) was set forth in column No. 2 of the challan under section 173, Cr. P. C. The Committing Magistrate then undertook an inquiry under Chapter 18, Cr. P. C. against only five co‑accused persons and recorded the statements of four prosecution witnesses on the date 12‑12-1966 in the absence of the sixth accused Rahmat Ali (the son of Haider) whose name had been shown in column No. 2 of the police report. On the date 7‑1‑1967 the prosecuting Sub‑Inspector is said to have submitted an application to the committing Magistrate which is not on the relevant file praying that one Rahmat Ali (the son of Haider), whose name had been indicated in column No. 2 of the challan, might be summoned as an accused person. In response to that application the Committing Magistrate passed an order on the date 19‑1‑1967 directing that the said Rahmat Ali should be summoned. On the date 24‑1‑1967 the said Rahmat Ali appeared in the Court of the Committing Magistrate arid presented an application for bail in regard to which the Committing Magistrate passed an order in the following terms:‑

"For the ends of justice and for the fair play it is imper ative that Rehmat s/o Haider should stand before the inquiry. As such Rahmat s/o Haider is ordered to execute his personal bond along with one surety in the amount of Rs. 10,000. He is not added as accused in the case so far. He will be added if some material evidence is brought on the record. He is also directed to appear in the court on each hearing."

2. 'Tile Committing Magistrate then pursued the inquiry and on the date 8‑5‑1967, after having recorded the evidence of all the prosecution witnesses, he passed the below cited order:‑

"I find some substantial evidence against Rahmat s/o Haider so I take him as accused under section 351, Cr. P. C. and accordingly he is arrested and sent to the judicial lock up.

3. The Committing Magistrate then committed all the six co‑accused persons including Rahmat (the son of Haider) to stand. their trial in the Court of Session under section 148, P. P. C. and under section 302/149 P. P. C.

The proceedings are forwarded to the High Court of West Pakistan for the quashment of tire commitment order dated 25‑5‑1967 poised by the Committing Magistrate on the following grounds:‑‑

4. The commitment order in this case is manifestly erroneous avid illegal. The order passed by the committing Magistrate on the relevant file on the date 24‑1‑1967 indicates that four prosecution witnesses had already been examined before the accused Rahmat (the son of Haider) was summoned as an accused person and was ordered on 24‑1‑1967 to execute a personal bond and was further directed to appear on every further date of hearing. It is abundantly clear from the order of the Committing Magistrate dated 24‑1‑1967 that the said Rahmat (the son of Haider) was not placed on the footing of an accused person at all inasmuch as the subsequent order dated 8‑5‑1967 of the committing Magistrate shows that it was on the date 8‑5‑1967 that the said Rahmat (the son of Haider) was for the first time, treated as an accused person in the case. Nevertheless, on the other hand, even before the date 8‑5‑1967 he had been allowed by the Committing Magistrate to cross- examine sortie of the prosecution witnesses, which is a privilege that could have been accorded only to an accused person. Evidently, the inquiry was not conducted by the Committing Magistrate in accordance with the relevant provisions of the law. However, neither the counsel for the complainant nor the prosecut ing Sub‑Inspector drew the attention of the Committing Magistrate to the impropriety and illegality of the conduct of the inquiry in so far as it concerned the accused Rahmat (the son of Haider). In view of these circumstances the order whereby the six co‑accused persons: lathe Khan, Muhammad Ashiq, Muhammad Waris, Altar Hussain and Rahmat (the son of Haider) were committed to stand their trial in the Sessions Court for offence under sections 148, P. P. C. and 302/149, P. P. C. is null and void and illegal ab initio' and in toto. The entire proceedings of this case are, therefore, being forwarded to the High Court of West Pakistan so that the commitment order dated the 25th May 1967 relating to this case may be quashed under section 215, Cr. P. C. on account of its illegality.

Malik Abdul Hamid for A.‑G. for the State.

Muhammad Sharif Alam for Respondents.

This case has been reported by the learned Session, Judge, Sialkot. Out of the Six accused who were alleged to have committed offences under sections 148 and 302/149 of the Pakistan Penal Code, five were sent up for trial and the name; of Rahmat Ali was shown in column No. 2. The Inquiry Magistrate had recorded the statements of four prosecution witnesses when on 7th of January 1967, the Prosecuting Sub‑Inspector submitted an application to the Committing Magistrate pray in that Rahmat Ali son of Haider whose name had been mentioned in column No. 2 of the challan, should be summoned as an accused person. The learned Magistrate passed an order on 19th of January 1967, that the said Rehmat Ali be summoned in Court. Rehmat Ali appeared on 24th of January 1967, and prescribed a bail application. The learned Committing Magistrate passed the following order :‑

"For the ends of justice and for the fair play it is imperative that Rehmat s/o Haider should stand before the inquiry. As Such Rehmat s/o Haider is ordered to execute his personal bond along with one surety in the amount of Rs. 10,00. He is not added as accused in the case so far. He will be added if some material evidence is brought on the record. He is also directed to appear in the Court on cacti hearing."

On 8th of May 1967, the Committing Magistrate found that some substantial evidence against Rehmat son of Haider had been brought on record. He passed the following order:‑

"I find sonic substantial evidence against Rehmat s/o Haider so I take him as accused under section 351, Cr. P. C. and accordingly he is arrested and sent to the judicial lock‑up."

All the six accused including Rehmat were. then committed to the Court of Sessions to stand their trial for the offences with which they were charged. The learned Sessions Judge has forwarded this case to the High Court for quashing the proceed ings as in his opinion the commitment order was manifestly illegal and erroneous.

2. It is evidence that the inquiry against Rehmat was conducted in a manner which is entirely unwarranted by law.

The order of the learned Committing Magistrate dated 24^th of January 1967, cannot be legally sustained. He observed that Rehmat was not to be treated as an accused person and yet called upon him to execute a personal bond along with one surety for his appearance in Court. There is no provision in law where a person who is not arraigned as an accused person or who is not a recalcitrant witness can be called upon to furnish security for his appearance in Court. The direction of the learned Magistrate to Rehmat to attend on each hearing of the case was also without any legal sanction.

3. The learned counsel for the respondents in this cases submitted that the Magistrate had recorded the statements of twelve prosecution witnesses when on 8th of May 1967, he included Rehmat among the category of the accused. It was imperative on the learned Magistrate under subsection (2) of section 351 of tile Criminal Procedure Code to have examined all the witnesses afresh after he had directed on 8th of May 1967, that Rehmat be arraigned as an accused person this was not done. The commitment of Rehmat is entirely illegal.

4. It was further submitted by the learned counsel appearing for respondents that the commitment of the other live co‑accused was also vitiated. I do not agree with this. The inquiry so far as the other five accused is concerned, is quite in order. The High Court call quash a commitment only on account of a legal infirmity. There is no legal flaw in the commitment of the rest of the five accused. I would, therefore, direct that the learned Sessions Judge should proceed with the trial of the five co- accused of Rehmat. The case of Rehmat may be separated. The learned Sessions Judge may ask the District Magistrate, Sialkot, to depute a Magistrate of competent jurisdiction to make an inquiry against Rehmat. In case he finds any substance in the charges against Rehmat, he may commit him to the Court of Session.

5. The recommendation of the learned Sessions Judge is accepted only partly. The reference is answered accordingly.

Reference answered.

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