1994 P Cr (PLP)

Nazar Maqbool and Sammar Maqbool, petitioners have moved this Court under section 561-A, Cr.P.C. for the quashment of the criminal proceedings pending in the Court of Additional Sessions Judge (1st), Khanewal in the form of a private complaint titled as "Nazar Maqbool and Sammar Maqbool v. Riaz Ahmed" and also order, dated 17-1-1994 whereby the petitioners were summoned as an accused persons.

2. The brief facts of this case are; that Riaz Ahmed

respondent No.l/complainant filed a private complaint in the Court of learned Sessions Judge, Khanewal on 13-11-1993 under section 364/377, P.P.C. and also under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance NO.VII of 1979 against the petitioners and another. It was alleged in the complaint that on 20-6-1992 the complainant's son Muhammad Muzammil aged about 16/17 years was abducted by the petitioners and one other and F.I.R. No.217/92, dated 7-8-1992 under section 364, P.P.C. was got registered by the respondent at Police Station Jahanian, District Khanewal. It was specifically alleged in the complaint that the petitioners and another committed sodomy with Muzammil son of the complainant. It may be mentioned here that during the investigation of the police case it was found that the petitioners were innocent so the respondent filed a private complaint.

3. The learned Additional Sessions Judge after recording the preliminary evidence of respondent No.l sent the case to the Circle Magistrate under section 202, Cr.P.C. for inquiry and' report; when this report was received by the learned Additional Sessions Judge, he after going through the same found sufficient material against the petitioners and, therefore, he issued the process against them under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 and also under section 377, P.P.C. vide his order, dated 17-1-1994.

4. The learned counsel for the petitioners contended that the order, dated 17-1-1994 whereby the petitioners and another have been summoned as an accused persons is illegal because the statements of the complainant and his witnesses were not recorded by the learned trial Court himself but by his Reader which is incurable illegality. He further added that even the Inquiry Magistrate did not record the, statements of the witnesses himself but those were also recorded by his Reader which has caused prejudice to the case of the petitioners and has resulted into a miscarriage of justice. Reliance in this behalf was placed upon a judgment reported as Muhammad Ali Kazi and another v. The State and 3 others 1994 P Cr. L J 430 and also Munshi Ahmad and others v. Maulvi Abdul Hannan 1987 P Cr. L J 2499. It was also argued that the alleged complaint against the petitioners is based on mala fide because the criminal case vide F.I.R. No.217/92 was registered against the petitioners but the same was found as false by the police. The impugned order was also termed as fanciful and arbitrary.

5. I have given my earnest thoughts to the arguments advanced by the learned counsel for the petitioners and have also gone through the law cited by the learned counsel for the petitioners.

6. The procedure for trials before the High Courts and Courts of Session has been given in Chapter XXII-A, Cr.P.C. which starts from section 265-A and goes up to section 265-N, Cr.P.C. It is nowhere provided in the procedure that the High Court or the Sessions Court shall record the statements of witnesses with its own hand and cannot dictate the same to his Reader or Stenographer. It has clearly been laid down under section 265-F, Cr.P.C. that the Court shall proceed to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution. However, section 202, Cr.P.C. reads as under:-- "(1) 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 the 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 any justice of peace or by a Police Officer or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complainant: Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200. (2) A Court of Session may, instead of directing an investigation under the provisions of subsection (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint. (3) If any inquiry or investigation under this section is made by a person not being a Magistrate, or `Justice of Peace' or a Police Officer, such person shall exercise all the powers conferred by this Code on an officer incharge of a police station except that he shall nest have power to arrest without warrant. (4) Any Court inquiring into a case under this section may, in thinks fit, take evidence of witnesses on oath."

7. In this case I find that the learned Additional Sessions Judge himself did not record the statement of the complainant with his own pen. He has attached certificate in the end of his statement certifying that the statement of the complainant was recorded on his dictation and to his hearing. I also find that the learned Magistrate who recorded the statements of the witnesses under section 202, Cr.P.C. he has also given a certificate that all the statements were dictated by him to the Reader as he himself could not write it down due to pain in his right hand. It may be mentioned here that according to the High Court Rules and Orders double record of a Session trial is maintained and a statement of a witness in Urdu is recorded by the Reader of the Court whereas in English is recorded by the Stenographer of the Court gut under the dictation of the Court and to his hearing. I have also seen section 537(a), Cr.P.C. wherein it is laid down that no finding, sentence or order passed by a Court of competent jurisdiction can be reversed or altered under Chapter XXVII or on appeal or revision on account of any error, omission or irregularity in the complaint.

8. In view of what has been discussed above, I do not find any illegality committed by the learned Additional Sessions Judge in the proceedings taken by him in the private complaint filed by the respondent against the petitioners and nor in the order, dated 17-1-1994 passed by him in pursuance of which a process was issued against the petitioners.

9. The case-law cited by the learned counsel for the petitioners is not applicable to the facts of this case as it relates to the trials before the High Court or the Sessions Judge.

10. For the foregoing reasons, this petition having no force is dismissed. N.H.Q./N-243/L Petition dismissed.