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Criminal Revision No. 44 of 1976, decided on 18th February 1976.

- S. 256-Criminal trial-Trial Court examining accused and proceeding to frame charge-Case further adjourned for recording remaining prosecution evidence as well as defence evidence-Court, held, could not call upon accused to enter upon his defence and produce his evidence, before conclusion of prosecution evidence --Procedure adopted by Court, held further, was illegal.-[Criminal trial].

S. 257-Witness, re-summoning of-Cross-examination of pro secution witnesses by defence-A valuable right-Accused at very first opportunity submitting application to Court under S. 257 for resummoning of three P. Ws. who could not be cross-examined but for absence of his counsel, on, dates when statement of such witnesses recorded-Application, however, rejected on ground accused being afforded opportunity of cross-examination but declining-Court, held, bound to issue process for attendance of witness, in circumstances.-[Witness].

Saiful Kabir v. The State 1968 P Cr. L J 135 rel.

The facts of this case are as follows

In a case under section 392, P. P. C. against the petitioners the prosecu tion examined Muhammad Bakhsh P. W. 1, Jara P. W. 2 on 12-7-1974 and Muhammad Nawaz S. I. P. W. 6 on 21-10-1974. These witnesses were not cross-examined though the opportunity was given to the accused. After the charge was framed on 10-6-1975 and the accused entered upon their defence on that date, the petitioners made an application under section 257, Cr. P. C. for summoning the aforsaid witnesses for cross-examination. The learned Magistrate rejected the application by the impugned order on the ground" that the accused were given opportunity to cross-examine the P. Ws. but they declined to do so by their own sweet will, this application seeing to be for delaying the case. Hence this revision.

The learned counsel for the petitioners has argued that the observations of the learned Magistrate that the application was made for the purpose of delay were not correct. The petitioners could make application only after they had entered upon their defence and not prior thereto. It is further contended that the application cannot be rejected even an opportunity be given to an accused person to cross-examine the witnesses before the charge. In order to substantiate his contention he has cited 1968 P Cr. L J 135. Under section 257, Cr. P. C. an accused person after he has entered upon his defence, can apply to the Magistrate to summon any witness other than a witness whom he has cross-examined for purpose of cross-examination or the production of any document or other things. The Magistrate is bound to compel the attendance of such a witness, having not been cross-examined for cross-examination unless he is of the view that the application has been made for the purpose of vexation or delay or defeating the ends of justice. It is laid down in the above authority that there is nothing in section to say that the application shall be rejected if an opportunity has been given to an accused person to cross-examine the witness before the charge. The application submitted by the petitioners was made at proper, stage i.e. after they had entered upon their defence and therefore, it cannot be said that it was made for delaying the case as held by the learned Magistrate.

For the above reasons I am of the view that the order of the learned Magistrate is not sustainable in the eyes of law and is liable to be set aside. The case is, therefore, submitted to the High Court with the recommendation that the impugned order may be set aside and the application of the petitioner under section X57, Cr, P. C. dated 19-6-1975 may be accepted.

Nemo for Petitioners.

M. Safi Ahmad for the State.

A case under section 379, P. P. C. was registered at Police Station Jampur, on 8-4-1974 at 5-15 p.m., on the statement of Muhammad Bukhsh, which he made before Muhammad Nawaz, Sub-Inspector, Jampur Police Station. After investigation, challan was submitted in Court against Allah Bukhsh and Mitha accused under sections 379 and 411, P. P. C. on 7-5-1974. The accused were supplied with the spot inspection note and copies of the statements of the prosecution witnesses recorded under section 161, Cr. P. C. The case was adjourned to 4-6-1974, for evidence. No witness turned up on 4-6-1974 and 2-7-1974 and the case was adjourned to 12-7-1974. On the said date, state ments of Muhammad Bukhsh (P. W. 1) and Jara. (P. W. 2) were recorded. Khan Muhammad did not turn up in spite of personal service. His warrants of arrest were issued for 30-7-1974. The remaining witnesses were also sum moned for the said date. No witness turned up on 30-7-1974 and the case was adjourned to 27-8-1974... Statements of three witnesses were recorded on that date. One witness was given up as having been won over. The case was adjourned to 24-9-1974, for remaining witnesses. No witness turned up on 24-9-1974 and the case was adjourned to 21-10-1974. Statement of one witness was recorded on the said date and the prosecution evidence was closed. For further proceedings, the case was adjourned to 31-10-1974. It was found, on 31-10-1974, that the statement of' Muhammad Khan P. W. still remained to be examined. He was summoned for 26-11-1974. The prosecution was unable to produce the said witness on either dates in spite of the fact that his warrants had been issued by the learned Magistrate The case remained pend ing from 31-10-1974 to 23-6-1975, for want of his statement. The learned Magistrate found a prima facie case against the two accused under the section 392, 411, P. P. C. and he framed the charges against them on 10-6-1975. Statements of the accused were also recorded under section 342, Cr. P. C., on 10-6-1975, in spite of the objection raised by the learned counsel for the accused that the statements of the accused should be recorded after the conclusion of the prosecution evidence as the statement of one witness still remained to be recorded. After recording the statements of the two accused, the learned Magistrate adjourned the case to 23-6-1975, for recording the remaining pro secution evidence and for the defence evidence. On 23-6-1975, the learned Magistrate closed the prosecution evidence and adjourned the case to 7-7-1975 for defence evidence. On 19-6-1975, the learned counsel for the accused submit ted an application under section 257, Cr. P. C. for summoning Muhammad Bukhsh (P. W. 1) and Jara (P. W. 2) and Muhammad Nawaz, S. I. (P. W. 6) in defence for the purposes of cross-examination as these three witness could not be cross-examined when they appeared in the witness box. This application was rejected by rile learned Magistrate vide his order dated 20-6-1975. During the course of the arguments it was pointed out to the learned Magistrate by the learned counsel for the accused that he was unable to appear on the dates when the statements of the above-mentioned three witness were recorded. The learned Magistrate passed an order that the accused were given full opportunity to cross-examine the prosecution witnesses but they declined to do so of their own sweat will and the application seemed to be for delaying the case. Having felt aggrieved of the order of the learned Magistrate dated 20-6-1975, the accused filed a revision petition. The learned Sessions Judge referred the case to this Court recommending that the, order passed by the learned Magistrate was liable to be set aside. He made another recom mendation that the application filed by the accused under section 257, Cr. P. C. may also be accepted.

2. The history of the case given above would show that the challan was received in Court on 7-5-1974 and it took the prosecution more than one year and one and half months to conclude the evidence. The prosecution evidence was closed under the orders of the Court dated 23-6-1975 and the accused were directed to produce defence evidence on 7-7-1975. The charges were framed and statements of the accused recorded on 10-6-1975, when the statement of one prosecution witness still remained to be recorded. The appli cation was submitted before the learned Magistrate, on 19-6-1975, for sum moning the three prosecution witnesses named above who could not be cross -examined due to the absence of the learned counsel for the accused. It is provided in section 257, Cr. P. C. that "if the accused, after he has entered upon his defence applies 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, or the production of any document or other thing 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". An appli cation under section 257, Cr. P. C. can be moved only after the accused has entered upon his defence. The Magistrate is bound to issue process for the attendance of a witness other than a witness whom the accused has cross -examined. If a witness remains to be cross-examined for any reason the Magistrate is bound to summon such a witness. If however, it appears to the Magistrate that the application has been made for the purposes of vaxation of delay or for defeating the ends of justice 'he may reject the appli cation. While passing the order on 20-6-1965, the Magistrate observed that the accused were given full opportunity to cross-examine the P. Ws. but they declined to do so. It is an admitted fact that on the dates when the three witness mentioned in the application were examined the learned counsel for the accused was not present. His pre-.once was riot marked in the interim order-sheet and according to the statement of the learned counsel who repre sented the accused he was not present on those dates. The application under section 257, Cr. P. C. cannot be rejected on the ground that the accused were afforded opportunity of cross-examination, which they declined. Similar view was taken in Saiful Kabir v. The State (1968PCr.L J 135). The onto- exception is that it' the application for summoning any such witness is made for the purposes "of vaxation or delay or for defeating the ends of justice the application may e rejected. In the instant case on the very first opportunity the accused submitted an application under section 257, Cr. P. C. for summoning the three witnesses who could not be cores-examined. Thus the view of the learned Magistrate that the application had been made for delaying the case was no correct. Cross-examination is a valuable right of the accused, which cannot be denied to him. Truth can be elicited from the prosecution witnesses only through cross-examination.

The learned Magistrate committed another illeglity in this case. Charges were framed against me accused, on 10-6-1975. Both the accused were examined under section 342, Cr. P. C. on the said date. Once prosecution witness "still remained to be examined. The learned Magistrate adjourned the case to 23-6-1975 for the retaining prosecution evidence and for defence evidence. By passing this order he violated the provisions of subsection (1), of section 256, Cr. P. C. It is laid down under section 256 (1), Cr. P. C. that "if the accused refuses to plead or does not plead or claims to be tried the evidence of any remaining witnesses for the prosecution shall be taken and the accused shall then be called upon to enter upon his defence and produce his evidence." Before the conclusion of the prosecution evidence the learned Magistrate could not call upon the accused to enter upon his defence.

3. For the reasons stated above the reference of the learned Sessions Judge is accepted and the order of the learned Magistrate dated 20-6-1975 is set aside. As a result thereof, the application of the accused submitted under, section 257, Cr. P. C. is accepted. The Magistrate shall summon the three witnesses and afford an opportunity to the accused for cross-examination.

Revision allowed.

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