Law: Criminal Procedure Code (V of 1898)

Section: 211(f)

(a) Criminal Procedure Code (V of 1898), S. 211 (I) Omission to require accused to file list of witnesses Does not vitiate trial---¬Provided accused had adequate opportunity during trial to defend himself: (per Kayani, C. J., on difference of opinion between S7habir Ahmad, J. and Changez, J.) In the course of an inquiry under Chapter XVIII, Cr. P. C., into an offence of murder, before the committing Magistrate framed charges against the accused, he asked them if they would produce witnesses in defence, and each one of them replied that he would do so in the Sessions Court, if necessary. In the Court of Session, when asked if they would produce defence, they replied in the negative. In the High Court in appeal the objection of the accused's counsel was that they were not asked, in terms bf section 2f1 (1), Cr. P. C., to file a list of witnesses after the charge was framed and before they were committed to the Court of Session and that this vitiated the trial. There was a difference of opinion between Shabir Ahmad, J. and Changez, J., on the question of the effect of omission to comply with the provisions of subsection (1) of section 211, Cr. P. C. Shabir Ahmad, J. held that the omission of the committing Magistrate to question the accused persons under subsection (1) of section 211 of the Code of Criminal Procedure not being an incurable omission could be taken notice of only if it had resulted in a failure of justice. Changez, J. held that non compliance with provisions of subsection (1) of section 211, Cr. P. C., is an illegality which is not curable under section 537 of the Code of Criminal Procedure. These opposite conclusions were arrived at as a result of varying interpretations of the of the Supreme Court Moonda v. The State On the case being laid before a third Judge under section 429, Cr. P. C. Kayani C. J. (agreeing with Shabir Ahmad, J.) that the omission to require the accused to file a list of witnesses under section 211 (1) did not vitiate a trial, if during the trial the accused had adequate opportunity to defend himself. Moonda v. The State P L D 1958 S C (Pak.) 275 interpreted. Shal Khan v. The State P L D 1959 Lah. 55 dissented from. (b)…

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