2004 PLP 1654 (MLD)

Through this Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the validity of the order dated 5-8-2000 passed by the learned Magistrate section 30, Mian Channu and that of order dated 9-12-2000 passed by the learned Additional Sessions Judge, Mian Channu being illegal, without lawful authority, based on mala fides and against the rights of the petitioner. The facts of the case in a narrow compass, giving rise to this petition are that respondent No.3 filed a private complaint under sections 337-A (i) 337-A(ii), 337-F(i), 337-F(iii), 337-F(vi), 337-L(ii), 324, 452, 148 and 149, P.P.C. In the Court of Magistrate Section 30 Mian Channu alleging therein that on 19-7-1997 at about 10-30 a.m. The petitioner and others armed with Sotas, hatchet and pistol caused injuries to respondent No.3 and other whereupon preliminary statements of three witnesses besides the statement of the complainant, were recorded on 9-12-1999 and thereafter vide order dated 5-8-2000 the learned Magistrate summoned the petitioner and others to face the trial. Feeling aggrieved of the aforesaid order the petitioner filed a revision petition before the learned Additional Sessions Judge, Mian Channu, who vide order 9-12-2000 dismissed the same and passed the impugned order, hence this petition.

3. The learned counsel for the petitioner vehemently argued that the impugned orders passed by the learned lower Courts are against law; that the preliminary evidence was not recorded by the learned Magistrate himself in view of the relevant provisions of section 356, Cr.P.C. But was recorded by the Reader of the Court. This fact finds support from the comments submitted by the learned Magistrate, therefore, the impugned orders passed by the learned Lower Courts suffer from irregularity and call for interference by this Court.

4. Muhammad Sadiq respondent No.3 appeared on 16-10-2003 and thereafter he did not cause appearance before this Court, therefore, he was proceeded against ex parte.

5. I have heard the learned counsel for the petitioner and the learned A.A.-G. At length and perused the record.

6. It evinces from record that respondent No.3 filed a private complaint before the learned trial Court wherein preliminary statements of the complainant and the witnesses were recorded on 7-11-1998. The learned trial Court on the basis of preliminary evidence produced by the complainant i.e. Respondent No.3 summoned the petitioner and others to face the trial by way of passing the impugned order dated 5-8-2000 which was assailed by the petitioner by filing a revision petition in the Court of learned Additional Sessions Judge, Mian Channu which was dismissed. There is no denying the fact that the preliminary statements of the complainant and that of the witnesses produced by him were not recorded by the learned Magistrate himself but instead of the same were recorded by the Reader of the learned trial Court. This fact has also been admitted by the learned Magistrate in the comments submitted by him to the fact that the preliminary evidence produced by the complainant was not recorded by him and the same was recorded at his dictation by the Reader due to rush of work. I do not agree with the comments submitted by the learned trial Court to this effect that the preliminary evidence was recorded at his dictation by the Reader. Strangely enough even he had not showed his inability for recording the evidence himself nor he made any memorandum in this respect in view of the relevant provisions of subsection (4) of section 356, Cr.P.C. The contention of the learned A.A.-G. That the provisions of the aforesaid section are curable is devoid of any legal force as laid down in (1987 PCr.LJ 2499) "Munshi Khan and others v Maulvi Abdul Hanan". Therefore, recording of preliminary evidence by the Reader of the Court amounts to illegality. The learned counsel for the petitioner further went on arguing that the learned revisional Court was not justified while passing the impugned order relying upon (1999 PCr.LJ 1725 Karachi) and (1990 MLD 2073) Karachi. The facts and circumstances of those are not applicable to the present facts. However, in this respect reliance can safely be placed on (1982 PCr.LJ 949) "Abdul Hameed v. The State" and (1995 PCr.LJ 1371) "Jan Muhammad and others v. Gaman Khan" wherein it has been held that the preliminary evidence not recorded by the Magistrate himself amounts to illegality and an abuse of the process of the Court.

7. For what has been discussed above and following the case-law referred to above, I am of the considered view that the preliminary evidence recorded by the Reader of the learned trial Court suffers from illegality and calls for interference by this Court.

8. Consequently the instant petition is allowed, the impugned orders passed by the learned Lower Courts' are set aside and the proceedings before the learned trial Court are quashed. H.B.T./A-183/L Proceedings quashed.