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Criminal Miscellaneous No. 6728 of 1969, decided on 22nd December 1969.
----Ss. 215 & 561-A read with Ss. 251-A, 256 & 257-Provision of S. 251-A couched in peremptory words, relates to a procedure in Court and affords an invaluable facility to an accused person--To be construed strictly and given full effect-Omission to supply copies of statements of certain witnesses to accused during commitment proceedings-----Fatal' to proceedings---Commitment proceedings quashed.
State v. Gaman Khan and others P L D 1966 B J 30 ref:
Ijaz Hussain Batalvi for Petitioners.
Abdul Qayyum Bhaui for the State.
The petitioners have moved this petition under section 215; Cr. P. C. read with section 561-A, Cr. P. C., for quashing the commitment in a case against them under section 302/307/148/149, P. P. C.
2. The case was registered against the petitioners, five in number, and an incomplete challan was filed in Court on the 20th February 1967 followed by a complete challan on 7th July 1967 mentioning the following additional witnesses: -
(i) Muhammad Sadiq Khan, Section Officer, B. D. Depart ment, Government of West Pakistan, latter examined in the Commitment Court as P, W. 19,
(ii) Dr. Abrar Malik, Services Hospital latter examined in the Commitment Court as P. W. 20.
(iii) Muhammad Anwar, Superintendent Finance Department, Government of West Pakistan, latter examined in the Commitment Court as P. W. 21.
(iv)Malik Ghulam Rasul, clerk, Services Hospital, latter examined in the Commitment Court as P. W. 29,
(v) Asghar Ali Shah, Head Clerk, Services Hospital, latter examined in the Commitment Court as P. W. 31.
These witnesses were examined during the investigation by Malik Ghulam Haider, D.S.P. The police statement of the witnesses mentioned in the incomplete challan were supplied to the petitioners on 27th February 1967, by the learned enquiry Magistrate and a note recorded to this effect. However, it appears that the police statements of the above-mentioned five additional witnesses were not supplied to the petitioners who made no grievance of it before the Commitment Court but at before the trial, they submitted an application complaining of it. The learned Sessions Judge, ordered that if the copies of the statements of the witnesses had not been supplied earlier they' should be supplied forthwith. The copies of statements have now been supplied but as late as 19th December 1969.
3. The learned Sessions Judge was asked to enquire into the factual aspect of the matter to determine whether in fact the omission complained of by the petitioners had taken place. The reports received as well as the submissions of the learned counsel for the State make it clear that in fact such an omission had taken place The legal necessity of complying with provisions of section 251-A, Cr. P. C. even in commitment proceeding has been impressed in a judgment of this Court in the case of State v. Gaman Khan and others (P L D 1966 13 J 30). The question which requires further consideration is whether in the circumstances of the present case, the omission complained is of a nature to vitiate the commitment order itself. As the provision of law is couched in peremptory words, relates to a procedure in Court, affords an invaluable facility to a person accused of crime, and has been enacted, not in addition to, but in substitution of certain facilities earlier provided for by sections 256 and 257 of the Criminal Procedure Code, it hits to be construed strictly and given full effect. The accused cannot in such a case be called upon to agitate at the earliest opportunity, much less to prove, a personal prejudice to his cause. Consequently, the omission is fatal to the proceedings.
4. In the circumstances and for foregoing reasons, the petition is accepted, the commitment of the petitioners is quashed. The record be sent back to the District Magistrate, Jhang, for entrusting the enquiry to any other competent Magistrate for proceeding in accordance with the law. As the case has been inordinately delayed, the learned Magistrate entrusted with the, case should proceed, if possible, from day to day.
Petition accepted.
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