1969L3040 (PLP)

Mahmood Majid Khan for Petitioner. Saeedul Hasan for the State. This order will dispose of Criminal Original No. 110 of 1968. The prayer in this application is for punishing Dr. Arshid Malik, District Magistrate, Sargodha, and Ch. Jahangir Ali, Advocate of Sargodha, for contempt of this Court.

2. The facts which have given rise to this application are these: The petitioner, Mst. Allah Bandi, submitted an NCH Form for transfer of House No. 7‑S‑106 Block No. 11, Sargodha. She engaged Ch. Jahangir Ali, Advocate, on her behalf in this connection. It is her case that the house was transferred to her in its entirety and she made part payment of that. She gave Rs. 3,000. to Ch. Jahangir Ali to purchase compensation books. After some time Ch. Jahangir Ali prevailed upon her to give some accommodation to his brother‑in‑law Shaukat Ali. The lawyer was giving out all the times to her that the P. T. D. was being prepared by the Department and will be delivered to her in due course. She started some changes in the house and it was then that Jahangir Ali and his brother‑in‑law Shaukat Ali abstructed the repairs and claimed that, except the baithak and the kitchen, the entire house had been transferred to Shaukat Ali. When she approached the Settlement Authorities, it transpired that a deed of association between hereself and Shaukat Ali had been filed on 23rd of April 1960. The petitioners case is that this is a forged deed of association to which she is not a party nor was she ever summoned by the Settlement Authorities.

3. Site applied to the Superintendent of Police on 4th of November 1965, but with no result. She then addressed an application to the President of Pakistan incor porating all these facts and requesting that action be taken against Ch. Jahangir Ali for professional misconduct. It was also alleged that Ch. Jahangir Ali had committed fraud and had cheated the widow and deprived her of a part of the house without her knowledge. The application was received by the Deputy Commissioner, Sargodha, who marked it on to the Additional District Magistrate. The Additional District Magistrate by his order dated 15th of November 1966, called for the comments of the Public Prosecutor. The said Officer gave an opinion that commission of offences under sections 420, 468 and 471, P. P. C. could be made out from the contents of the application. On 3rd of December 1966, the learned Additional District Magistrate marked this application to Mr. Amir Muhammad Shah, Magistrate First Class, for enquiry and report. The above Magistrate after recording the evidence of seven witnesses, passed an order on 1st of March, 1967, that prima facie a case under sections 420, 468 and 471, P. P. C. had been made out. He sent the papers on to the Additional District Magistrate for further proceedings.

4. While this report was in transit, Ch. Jahangir Ali applied to the Additional District Magistrate that the enquiry had been held in his absence and that he should be permitted to participate in it. The learned A. D. M. marked it to Mr. Amir Muhammad Shah, who stated that he had already made a report in this regard. Ch. Jahangir Ali filed a fresh application before the Additional District Magistrate for permission to be associated with the enquiry, on 7th of March 1967. The learned Additional District Magistrate passed an order on 12th of May 1967, directing that the papers be sent to Ch. Muhammad Ishaq for early disposal according to law. While proceedings were being taken by this Magistrate, the petitioner intimated to him that she wanted the transfer of the case from his Court. An application, being Cr. Misc. No. 3111 of 1967, was tiled in this Court for transfer of the proceedings from the Court of the said Magistrate. The contents of this application gave an impression that perhaps the accused had been summoned and the learned Magistrate, who was then cognizant of the case, was proceeding with the hearing of the case itself. By my order dated 21st of December 1967, I directed that the accused being a local lawyer, the learned District Magistrate should himself hear the case. I find from the order‑sheet in the case that the learned District Magistrate passed an order on 16th of January 1968, whereby he summoned the petitioner and the respondent. The word `accused' was not used by him. Thereafter, the case was being adjourned for consideration (ghaur) from time to time. On 28th of March, 1968, Ch. Jahangir Ali respondent stated that he wanted to argue the matter. The case was then adjourned and arguments were finally he‑d on 25th of April 1968. There were some other adjournments and, ultimately, on 9th of May 1968, the learned District Magistrate passed an order observing that the order of Mr. Amir Muhammad Shah holding that a prima facie case under sections 420, 468 and 471, P. P. C. had been made out, was lacking in details and the case required further enquiry. He, therefore, ordered further enquiry in the matter and entrusted the case to Ch. Rias Ahmad for report. He also observed that respondent Ch. Jahangir Ali could take part in these proceedings. The petitioner filed a revision petition before the Sessions Judge against this order of the learned District Magistrate which was dismissed on 15th of September 1968. The present petition for contempt was moved on 28‑5‑68.

5. I have a feeling that this application for contempt is misconceived and actually a revision petition should have been filed in this Court against the order of the District Magistrate directing further enquiry and that of the Sessions Judge dismissing the revision application against the said order of the District Magistrate. Since, however, the matter has come to my notice during the hearing of the contempt matter, I would like to deal with it under section 439, Cr. P. C.

6. The learned District Magistrate has observed in his report, submitted to this Court in reply to the application for contempt that the trial of the case had not started because the accused had not been ordered to be summoned. It was, according to him, still a complaint at the stage of section 202 of the Criminal Procedure Code, and the proceedings had not yet commenced. The enquiry was therefore, ordered to be held by Ch. Riaz Ahmad Magistrate under section 202 of the Criminal Procedure Code, and the parties were directed to appear again in the Court of the District Magistrate, Sargodha, on 25th of May 1968.

7. It is very unfortunate that legal procedure was not observed in respect of this matter at more than one stage. The reference made by the learned Additional District Magistrate to Mr. Amir Muhammad Shah was clearly a reference under section

202. It is correct that the learned A. D. M. did not record the statement of the complainant before referring A this matter to Mr. Amir Muhammad Shah, but as held by the Supreme Court in case Shamim v. State and another (P L D 1966 S C 178), it was a mere irregularity. After the receipt of the evidence and the report of Mr. Amir Muhammad Shah that the preliminary evidence revealed the commission of offences under sections 420, 468 and 471, P. P. C. it was incumbent upon the learned District B Magistrate either to dismiss the complaint or proceed with the matter by issuing process to the accused. The transfer to another Magistrate was entirely illegal. This was so held by the Lahore High Court in Santokh Raj Singh Sardar Gopal Singh v. Gahwar Khan Sultan Khan (A I R 1940 Lah. 61). The association of a person complained against in preliminary proceedings is also illegal. A person complained against is not an accused person and cannot be associated with proceedings in the complaint case unless he has been summoned as an accused person. C Reference in this connection may be made to Abdul Halim v. Raja Qurban Husain and others (P L D 1965 Lah. 570). The report of the learned District Magistrate indicates that he considered the case still to be at the stage of section 202, Cr. P. C., but in spite of that he permitted the respondent to be associated with it. This shows that he also fell into an error in this regard.

8. After a perusal of the order‑sheet in this case, it is clear that the learned District Magistrate took cognizance of the case on 16th of January 1968, by summoning the respondent although he has not described him as an accused person. The only valid conclusion that can be drawn from this order is that the learned District Magistrate took cognizance of the matter and summoned the respondent as an accused person. There was no other law under which he could be summoned. The subsequent orders passed on different dates adjourning the case for consideration of the matter also indicate that the learned Magistrate was considering the question whether he should proceed with the case or dismiss it. The application filed in between the dates to which this case was adjourned, however, was responsible for changing the complexion of the matter. In my view, according to law, after taking the cognizance of the matter, the learned District Magistrate was not justified in ordering a further enquiry under section

202. This proposition is conceded by Mr. Saeedul Hasan, the learned counsel for the State.

9. I may also observe that the objection of the learned District Magistrate to the order of Mr. Amir Muhammad Shah was not valid. That learned Magistrate had recorded considerable evidence and had passed an order that prima facie commission of some offences has been made out. Such orders are usually brief and Mr. Amir Muhammad Shah had made no departure from the usual procedure. The learned District Magistrate in his order has not made any reference to the evidence recorded in the case and has not said that no offence is made out from that evidence.

10. The impugned order of the District Magistrate dated 9th of May 1968, and that of the learned Sessions Judge dated 4th of September 1968, are, therefore, set aside. I have held above that the respondent was summoned as an accused in the case by the order dated 16th of January 1968. Let the learned District Magistrate now issue fresh process to the respondent for appearance in his Court and dispose of the case as expedi tiously as possible.

11. There is no need to proceed with the contempt matter. Criminal Original No. 110 of 1968 is dismissed. Order accordingly.