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Criminal Miscellaneous No. 303/Q of 1974, decided on 22nd October, 1974.
‑‑ Ss. 215 & 208(1)‑Quashment of proceedings‑Prosecution closing evidence after examining six out of twenty‑two witnesses, remaining to be produced in Sessions Court‑Inquiry Magistrate committing accused to Sessions‑Such practice not approved-Inquiry Magistrate to follow procedure as laid in S.208(1) Commitment order quashed‑Case remanded‑Criminal Procedure Code (V of 1898), S. 561‑A‑Penal Code (XLV of 1860), Ss. 148, 302/149, 307/149.
Sher Bahadur v. Emperor (1935) 36 Cr. L J 169 rel.
Kh. Sultan Ahmad for Petitioner.
Arif Sajjad for the State.
A case was registered at Police Station Mozang, Lahore on 6th of April, 1973, against the petitioner Siraj atlas Saji and seven others on the report to one Muhammad Hanif under sections, 148, 302/149 and 307/149, P. P. C. The inquiry was hold by Mr. Javed Destgir Mirza, M. I. C., Lahore, who vide his order dated 4‑6‑1974, committed the petitioner and others to the Court of Session to stand their trial. Anwar Gujjar, Sajawal and Babu Altaf, who were declared proclaimed offenders, were also committed to the Court of Session.
2. Siraj petitioner alone has filed this petition under section 215, Cr. P. C. for the quashment of the commitment order passed against him, on the ground that out of 22 prosecution witnesses the learned Magistrate after examining only six witnesses has committed the petitioner and others to the Court of Session, that there was no evidence on the record making out a prima facie case against the petitioner, that the prosecution was duty bound to produce all the material evidence at the commitment stage in order to afford an opportunity to the accused to cross‑examine the witnesses and that by withholding the evidence, the case of the petitioner has been prejudiced.
3. I have heard the learned counsel for the petitioner and State counsel and have also gone through the commitment order. The Inquiry Magistrate, in the impugned order, has not given any reason‑what to say cogent reason, for committing the petitioner and others to the Court of Session. In para. 6 of the commitment order it is mentioned that the P. S.1. closed the prosecution evidence on 4‑6‑1974, stating that the remaining evidence shall be produced in the Court of Session. According to the Magistrate the prosecution was given repeated opportunities to produce the evidence and from 22‑12‑1973 to 4‑5‑1974 only one witness was produced.
4. Learned counsel for the petitioner contended that under section 208(1), Cr. P. C. the Committing Magistrate was duty bound to take ail the evidence which the prosecution proposed to produce at the trial and that the prosecution cannot produce its evidence partly before the Committing Court and the rest before the Sessions Court for the first time. In this way, it was contended, that the commitment order, without having taken all the evidence proposed by the prosecution, is bad in law. Reliance in this connection was placed on Sher Bahadur v. Emperor ((1935) 36 Cr. L J 169).
5. Learned counsel for the State was not able to cite any authority contrary to the one referred to above and facing this situation he submitted that the case be remitted to the Inquiry Magistrate for taking all the evidence which the prosecution proposes to produce at the trial.
6. In view of the above, I accept, this petition, quash the commitment order. The learned Inquiry Magistrate is directed to record the evidence of all the prosecution witnesses, which the prosecution proposes to produce at the trial and then take action in accordance with law.
Case remanded.
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