QADAR BAKHSH AND 3 Others vs The STATE
This matter arises from a petition for special leave to appeal filed against the High Court's refusal to interfere with an order of commitment passed by the District Magistrate, Mekran, under Section 302 read with Section 34 of the Pakistan Penal Code. The core legal questions involve whether the failure of the committing court to examine prosecution witnesses, to call upon the accused for a list of defence witnesses, and to examine the accused under Section 209 of the Criminal Procedure Code vitiates the commitment order and causes prejudice. The Supreme Court held that while the first two grounds did not warrant quashment, the failure of the committing court to examine the accused under Section 209 of the Criminal Procedure Code was a substantial ground causing potential prejudice, thereby warranting the grant of leave to appeal. The key principle laid down is that the mandatory examination of an accused by the committing court is a substantial safeguard, and its omission can form a valid basis for granting leave to appeal against an order of commitment.
- Does the failure of a committing court to examine the accused under Section 209 of the Criminal Procedure Code cause prejudice warranting leave to appeal?
- Whether the omission to call upon an accused to give a list of defence witnesses is sufficient ground to quash an order of commitment?
- Can the High Court decline to interfere with an order of commitment on the ground that no prejudice was caused to the petitioners?
- Section 302, Pakistan Penal Code
- Section 34, Pakistan Penal Code
- Section 435, Criminal Procedure Code
- Section 438, Criminal Procedure Code
- Section 209, Criminal Procedure Code
ORDER
1. M. R. KHAN, J.-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.
2. 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.
3. 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.
4. (i.e) That the committing Court did not examine any of -the petitioners as required under section 209 of the Criminal Procedure Code.
5. 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 PLD 1958 SC 275 and PLD 1961 SC 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.
6. Mubarakullah (1968 SCMR 1425) leave was granted on the ground of the committing Court's failure to ask the accused to give a list of witnesses.
7. 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.
8. 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.