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Criminal Revision No. 730 of 1970, decided on 24th September 1970.

----Ss. 435, 438 & 439 Revision‑Jurisdiction‑Defence prayer to summon prosecution witnesses, not cross‑examined earlier, refused by trial Court‑Sessions Judge on revision directing issue of process to such witnesses Sessions Judge, held, not competent to pass, any order in exercise of his revisional jurisdiction in matter but could only recommend case to High Court for suitable orders‑Order of Sessions Judge, setting aside order of trial Court set aside.

F. M. Anwari for Petitioner.

Kazi Ahmad Khan for the State.

This is a petition under section 439, Cr. P. C. for revision of the order dated the 10th June 1970, passed by the learned Sessions Judge, Rawalpindi.

2. Ghulam Muhammad was being tried in the Court of Khan Muhammad Ansar Khan, Magistrate 1st Class, Rawalpindi, in a case under section 498/452, P. P. C. On the 15th October 1969, he made an application to have certain P. Ws. recalled for purposes of cross‑examination whom he had not been able to cross‑examine earlier. The trial Court rejected the petition. He preferred a revision petition to the Court of the Sessions Judge, Rawalpindi. The learned Sessions Judge, after reference to section 257 of the Code of Criminal Procedure, held that after Ghulam Muhammad had entered upon his defence' and had applied to the Magistrate to issue any process for compelling the attendance of any witness "other than a witness whom the accused has cross‑examined for the purposes of examination", the Magistrate shall issue such process unless he considers that such application should be rejected on the ground that it is made for the purposes of vexation or delay or for defeating the ends of justice. The learned Sessions Judge further found that the witnesses required by Ghulam Muhammad to be summoned had not been cross‑examined by him earlier. Accordingly, by order dated the 10th June 1970, the learned Sessions Judge accepted the revision petition and set aside the impugned order dated the 15th October 1969. He directed the trial Court to recall all the prosecution witnesses for the purposes of cross‑examination.

3. Ghulam Sarwar, the complainant felt aggrieved by the said order dated the 10th June 1970. According to him, the learned Sessions Judge could only recommend the case to the High Court for suitable orders but could not himself accept the revision petition, as he did. Accordingly, he filed the present revision petition to have the order dated the 10th June 1970, set aside.

4. I have heared Mr. F. M. Anwari, learned counsel for the petitioner and the learned counsel appearing for the State.

5. The provisions of sections 435, 438 and 439, Cr. P. C. unambiguously lay down that where a Sessions Judge, after examining the record of a case, is not satisfied about the correctness, legality or propriety of any order, he may "if he thinks fit, on examining under section 435 or otherwise the record of any proceeding, report for the orders of the. High Court the result of such examination . . . . . . . . ": Or receipt of the report, the High Court passes suitable orders in pursuance of section 439, Cr. P. C. Evidently (Except for the cases mentioned in sections 436 and 437) the Sessions Judge is not competent to pass any such order himself. In the instant case, the learned Sessions Judge, instead of making recommendation to the High Court, himself set aside the impugned order and gave certain directions to the trial Court. The impugned order, therefore, is invalid.

6. For the reasons stated above, the impugned order is set aside and the case is remanded to the learned Sessions Judge for taking action in accordance with law.

7. Parties shall appear in the Court of the Sessions Judge, Rawalpindi, on the 12th October 1970.

Petition accepted.

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