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Criminal Revision No. 1322 of 1971, decided on 25^thOctober, 1980.

‑‑‑Ss. 435 & 439‑Revision (criminal)‑‑Cross‑examination of witnesses, right of Prosecution witnesses not cross‑examined before framing of charge against petitioners‑Trial Court, held, bound to summon such witnesses for cross‑examination after framing charge and permit accused‑petitioners to cross‑examine them‑‑Case remanded.‑[Wit ness].

Saiful Kabeer v. State 1968 P Cr. L J 135 rel.

G. A. Farid Khan for AA. for the State.

Nemo for Respondents.

Date of hearing: 18^thOctober, 1980.

‑‑This is a reference under section 438, Cr. P. C, by an Additional Sessions Judge of Lahore recommending that the application of the accused‑petitioners for the recall of certain prosecution witnesses for their cross‑examination should be accepted.

2. The brief facts of the case are that Tariq and Muhammad Yasin, petitioners, were challaned under section 411, P. P. C. for being in possession of stolen articles. The prosecution examined Manzur Ahmad complainant, Muhammad Hussain, Saeed Hassan, Sabir Hussain and Mirza Muhammad Ali Baig, and the learned trial Magistrate came to the conclusion that prima facie a case was made out against the petitioners. Consequently, a charge was framed against them under section 411, P. P. C. An opportunity was given to the petitioners before the framing of charge to cross‑examine Muhammad Hussain and Saeed Hassan, but they did not prefer to put any questions to them. After the charge was framed against them; the petitioners applied to summon these witnesses in order to cross‑examine them. Their application was rejected by the learned trial Magistrate on 14th September, 1971, on the ground that they were given the opportunity to cross‑examine these witnesses but this opportunity was not availed by them. Being aggrieved by the said order, the petitioners preferred a revision petition against the same before the Sessions, which was referred to this Court with the recommendation, as stated in para. 1 above.

3. I have heard the arguments of the learned counsel for the State and have also perused the record. Mr. Jawaid Nayyar, learned counsel for Tariq and Muhammad Yasin, petitioners, is not present. In the present case Muhammad Hussain and Saeed Hassan do not appear to have been cross-examined before the charge was framed. In view of the findings of this Court in Saiful Kabeer v. State (1968 P Cr. L J 135), the trial Magistrate was bound to summon the said witnesses for cross‑examination after the charge was framed against the accused petitioners. This reference is, therefore, accepted and the case is remanded to the trial Magistrate with a direction that be will recall Muhammad Hussain and Saeed Hassan P. Ws. and permit the accused petitioners to cross‑examine them.

Revision allowed,

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