1988 P Cr (PLP)

Naveed Rasul Mirza for Appellants. Pervaiz I. Mir and Rafiq Ahmad Bajwa for Respondents. Dates of hearing: 21st, 23rd December, 1987 and 12th and 25th January, 1988. The facts giving rise to this Criminal Revision briefly are that on 11‑6‑1987 Fateh Muhammad respondent filed complaint under section 302/307/143/149/120‑B, P.P.C. against Muhammad Nazir and Muhammad Akram petitioners and 14 others, on the allegations that they in pursuance to the conspiracy and in furtherance of their common object launched murderous assault on Muhammad Anwar and caused his death on 8‑5‑1987 in Civil Hospital, Mandi Bahauddin. The Magistrate sent the complaint to the Court of Session Gujrat for trial. The case was entrusted to Zulfiqar Ali Khan, Additional Sessions Judge, Gujrat. He did not even examine the complainant on oath for four months. On his transfer, the case was placed before Akmal Qureshi, Additional Sessions Judge, Gujrat. He recorded the statement of the complainant on 15‑10‑1987, He neither issued process against the accused nor gave reasons for postponing the issue of process for compelling the attendance of the accused. He simply adjourned the case to 17‑10‑1937 for preliminary inquiry. On 17‑10‑1987, the complainant produced 4 witnesses namely Fateh Muhammad P.W.1, Ahsar. Mehmood P.W. 2, Basharat Hussain P.W.3 and Manzoor Hussain Shah P.W.4. The learned Additional Sessions .fudge recorded their statements. Fateh Muhammad P.W.1, Ahsan Mehmood P.W.2 and Basharat Hussain P.W.3 claiming to be the eye‑witnesses of the occurrence supported the allegations against the accused/ petitioners. Manzoor Hussain Shah P.W.3 deposed about the criminal conspiracy between Muhammad Akram petitioner No. 2 and others to do away with the deceased. The post‑mortem examination report of the injuries of Muhammad Anar deceased was also placed on record. The hearing of the complaint was adjourned to 24‑10‑1987 and then to 2‑11‑1987. On z‑11‑1987 Muhammad Nazir petitioner/ accused moved application before the learned Additional Sessions Judge requesting that he be associated with the preliminary inquiry so that true facts could be brought to the notice of the Court. The learned Additional Sessions Judge did not accept the application and simultaneously issued process against the petitioners and 14 others, to face trial in the complaint. Feeling aggrieved of this order, the petitioners filed Criminal Revision No. 479 of 1987 which was dismissed as withdrawn on 8‑11‑1987, hence this second revision, which has been entrusted to me by the Honourable Chief Justice.

2. Learned counsel for the petitioners contended that the impugned order, dated 2‑11‑1987 is illegal as well as perverse, inasmuch as, the statement of the complainant which was reduced into writing by the learned Additional Sessions Judge was not signed by him as required under section 200, Cr.P.C.; that the learned Additional Sessions Judge had postponed the issuance of the process without recording reasons therefore in contravention of the provisions of section 202, Cr.P.C. that despite request made by Muhammad Nazir petitioner, the learned Additional Sessions Judge did not associate with preliminary inquiry, in violation of the law laid down in case 'Muhammad Ibrahim v. Qudrat Ullah Ruddy' reported as P L D 1986 Lah. 256 which required the trial Court to associate the accused and examine him at preliminary stage, before the process were issued and that the manner in which the trial Court conducted proceedings in the complaint side by side with the bail application moved by Mohsin Hayat and other accused in challan case, indicate that the process were issued against the petitioner and his co‑accused to create ground for bail in the challan case. Conversely, the learned counsel for the respondent maintained that the petitioners had no legal right to be associated with the preliminary inquiry; that mere omission to get statement of the complainant signed and want of reasons for postponing the issue of process were/are curable irregularities and that there is sufficient evidence warranting the issuance of process against the petitioners. Learned counsel for the State has supported the impugned order.

3. I have considered the submissions made by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the petitioners The relevant provisions of law may be reproduced advantageously‑

Section 200, Cr.P.C.‑‑ A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also of the Magistrate." "Section 202(1), Cr.P.C.‑‑ Any Court, on receipt of a complaint of an offence of which it is authorised to take cognizance, or which has been sent to it under section 190, subsection (3), or transferred to it under section 191 or section 192, may, if it thinks fit, for reasons to be recorded, postpone them issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by a Police Officer, or by such other person as it thinks fit for the purpose of ascertaining the truth or falsehood of the complaint." Section 204(1), Cr.P.C.‑‑ If in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the second schedule, a summons should issue in the first instance, it shall issue his summons for the attendance of the accused. If the case appears to be one in which according to that column, a warrant should issue in the first instance, it may issue a warrant, or, if it thinks fit. A summons, for causing the accused to be brought or to appear at a certain time before such Court or if it has not jurisdiction itself some other Court having jurisdiction." Section 537, Cr.P.C.‑‑ Subject to the provisions hereinbefore, contained, no Ending, sentence order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account‑‑ (a) of any error, omission or irregularity in the complaint, report by police officer under section 173, summons, warrant, charge, proclamations, order, judgment or other proceedings before or .during trial or in any inquiry or other proceedings under this Code, or (b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges, unless such error, omission of irregularity has in fact occasioned a failure of justice." The examination of the aforesaid provisions of law make it very much clear that the omission on the part of the complainant to sign statement as required by section 200 Cr.P.C. and failure on the part of the Court to record reasons for the postponement of the issue of process after recording statement of the complainant are at best curable irregularities and not illegalities. The irregularities which vitiate proceedings have been detailed in section 530, Cf.P.C. The irregularities committed by the complainant and the learned Additional Sessions Judge by not signing the statement and by not recording the reasons to postpone the issue of process do not fall within the ambit of section 530 Cr.P.C. Section 537 Cr.P.C. states that errors, omission or irregularities in any inquiry or other proceedings under this Code do not vitiate the entire proceedings and the order suffering from irregularities cannot be reversed in revision on account of such irregularities unless the irregularity has in fact occasioned the failure of justice. In the instant case, the omission on the part of the complainant to sign his statement has not caused any prejudice to the petitioners. The complainant does not disown this statement. There is nothing in evidence to show that somebody else had made that statement in place of the complainant. Similarly, the failure on the part of the Court to issue process to the accused after recording statement of the complainant is not detrimental to the interest of the petitioner/accused. It rather goes in their favour. Furthermore, the evidence of the complainant and the witnesses examined in preliminary investigation has again to be recorded in the presence of the petitioners /accused and as such the irregularities pointed out by the learned counsel have not occasioned any failure of justice. As far the grievance of petitioner No. 1 that he was not associated in the preliminary inquiry, I find that the law does not require the Court to associate the accused person in preliminary inquiry. The learned counsel has not been able to point out any provision of Criminal Procedure Code or High Court Rules and Orders whereunder then trial Court was obliged to associate the accused at preliminary inquiry stage. It is worth notice that petitioner No. 1 moved application for associating him in preliminary inquiry after the statements of the complainant and the witnesses had been recorded and the preliminary inquiry had concluded. The case‑law relied on by the learned counsel is quite distinguishable and is not applicable to the facts of the present case. The learned Additional Sessions Judge has not on recorded the statement of the complainant but has also conducted preliminary inquiry before issuing process to the accused/ petitioners. On my independent assessment of the statements of the complainant and the three witnesses recorded in preliminary inquiry, I feel that there are at least sufficient grounds, for proceeding within the meaning of section 204, Cr.P.C. and as such the petitioners were rightly summoned to face trial. For what has been said above, there being no merit, the petition is dismissed. M. Y. H./M‑553/L Petition dismissed.