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Petition for Special Leave to Appeal No. 85 of 1970, decided on 11th May 1970.
(On appeal from the judgment and order of the High Court of West Pakistan, Quetta Circuit, Quetta, dated the 13th March 1970, in Criminal Revision No. 2 of 1969).
-------S. 209‑None of accused examined by committing Court as required under S. 209‑Contention that non‑examination caused prejudice to accused, held, could not be brushed aside‑Special Leave to Appeal granted by Supreme Court to consider question.
Sh. Riaz Ahmad, Advocate Supreme Court instructed by Abdul Karim, Advocate‑on‑ Record for Petitioners.
M. B. Zaman, Advocate‑General West Pakistan instructed by Ijaz Ali, Advocate‑on‑ Record for the State.
Date of hearing : 11th May 1970.
The petitioners have been committed to the Court of Sessions by the District Magistrate, Mekran to stand their trial for the offence of murder under section 302 read with section 34 of the Pakistan Penal Code.
The petitioners moved before the Sessions Judge, Qalat, a petition under section 435 and 438 of the Criminal Procedure Code for the quashment of the order of commitment, but the petition was dismissed. The petitioners then moved the High Court for the same purpose, but the High Court also declined to interfere with the order of commitment on the ground that no prejudice was caused to the petitioners. The petitioners have now come with this petition for special leave to appeal against the decision of the High Court.
The following three grounds have been urged in support of the petition for special leave:-
(i) That some of the prosecution witnesses were left unexamined by the committing Court.
(ii) That after the framing of the charge, the committing Court did not call upon all the petitioners to give a list of defence witnesses.
(iii) That the committing Court did not examine any of ‑the petitioners as required under section 209 of the Criminal Procedure Code.
Of these grounds, we do not find any substance in ground No. 1. Ground No. 2 also does not appear to be so strong as to warrant quashment of the order of commitment (refer P L D 1958 S C 275 and P L D 1961 S C 200), although the giving of an opportunity to the petitioners for filing a list of witnesses appears to be essential. However, in a similar case, namely, in the case of Abdur Rab v. Mubarakullah (1968 S C M R 1425) leave was granted on the ground of the committing Court's failure to ask the accused to give a list of witnesses.
The last ground taken in this case, however, appears to b substantial. None of the petitioners was examined by the committing Court as required under section 209 of the Code. The contention that non‑examination of the petitioners has caused prejudice to them cannot be brushed aside. Leave is, accordingly, granted as prayed. The appeal arising out of this petition shall be made ready expeditiously.
Learned counsel for the petitioners submits that the trial is likely to commence today, if it has not already commenced. In the circumstance, a telegraphic message be sent to the Sessions Judge for postponing the trial of the case till the disposal of the appeal.
Leave granted.
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