2015 PLP 206 (YLR)

SIKANDAR ZULQARNAIN SALEEM, J.

Azeem Mubashar was summoned along with two others as an accused to face trial in complaint case titled "Pervaiz Iqbal and others v. Azeem Mubashar and others" for the offences under sections 420/467/468/471/34 P.P.C. vide order dated 24-5-2014 passed by the learned Magistrate section 30, Daska. Feeling aggrieved the petitioner assailed the said order in a revision petition before the learned Additional Sessions Judge, Daska. The same was allowed and following order was passed:-- "

10. Consequently, impugned order on account of being not sustainable in the eye of law stands set aside with a direction that learned Judicial Magistrate will record cursory oral as well as documentary of the complainant himself and proceed further in accordance with law. As such, instant revision petition stands accepted."

2. The learned counsel for petitioner has submitted that the learned Additional Sessions Judge has passed an order which has no legal sanctity, either the revision petition would have been accepted or dismissed. The order impugned dated 28-6-2014 is against the spirit of law and has been passed while exceeding the jurisdiction and had passed the direction to the learned Judicial Magistrate to record cursory oral as well as documentary evidence of the complainant himself and proceed further in accordance with law. The contentions raised by the counsel for the petitioner are of two folds based on the following grounds:-- (i) That non-recording of the statement of the complainant on the same day as required under section 200, Cr.P.C. (ii) The statements were recorded by the reader of the court.

3. Heard and available record with the file perused. Straightaway I do not feel any hesitation while disagreeing with the learned counsel for the petitioner that omission to record statement of the complainant on the same day is illegality and not irregularity. The failure to examine the complainant on the same day is irregularity, especially when there were two complainants, complainant No. 1 of the complaint was examined on the very same day when complaint was filed, second was recorded later on, such omission is irregularity and is curable under section 537 Cr.P.C. and the complaint cannot be dismissed on this score alone. I am fortified by the view taken by the august Supreme Court of Pakistan in "Shamim v. The State" (PLD 1966 SC 178). Now reverting to the second proposition, as far as section 355, Cr.P.C. is concerned, this section deals with the record in the trial of certain cases by the Magistrate, inquiries are not mentioned in the said section.

4. However, in subsection (1) of section 356, Cr.P.C. the inquires have also been included and it would be advantageous to reproduce the same here:-- "

356. Record in other cases.

[(1) In trials before Courts of Session and in inquiries under Chapter XII] the evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate or Sessions Judge, or in his presence and hearing and under his personal direction and superintendence and shall be signed by the Magistrate or Sessions Judge." The basic essential was the presence of the Magistrate or the Sessions Judge while evidence was being recorded, the aforementioned provision of law makes it clear like sunshine. In the case in hand, the statements of P.W.1 Pervaiz Iqbal and P.W.2 Naheed Pervaiz contain the signatures of the learned Magistrate and it is apparent from the record that the statements of the complainants were recorded in the presence of the learned Magistrate, as all the statements had the following foot note:- Hence, a presumption arises that in the superintendence of the learned Magistrate and in his presence and personal direction the statements of the witnesses were recorded. Reliance is placed on PLD 1959 (W.P.) Lahore 186.

5. As far as the objection that Magistrate did not give certificate regarding his disability to record the statement himself as required under section 356 subsection (4) Cr.P.C., although it is necessary that a Magistrate not recording the evidence in his own hand had to give memorandum of evidence, as required by law, yet the omission to do so by itself does not vitiate the proceedings as the same is curable under section 537, Cr.P.C. Reliance is placed on PLD 1958 SC 392.

6. In the instant case, after filing the complaint, statement of the complainant No. 1 Pervaiz Iqbal was recorded on 14-3-2014 and his statement was corroborated by the other witness Mst. Naheed Pervaiz (complainant No. 2 in the complaint) who appeared as P.W.2 on 5-4-2012 and subsequently Naeem Afzal Cheema Advocate appeared as PW on the same day and closed the documentary evidence after tendering certain documents. Therefore, sufficient grounds existed for the trial court to proceed further with the case and petitioner along with two others was rightly summoned to face the trial. Petitioner's learned counsel has remained unsuccessful to satisfy the Court that irregularity, if any, had resulted in miscarriage of justice.

7. For what has been discussed above, I am constrained to hold that the order impugned passed by the learned Additional Sessions Judge, Daska dated 28-6-2014 is not sustainable and learned counsel for the petitioner has also failed to highlight any illegality in the order passed by the learned Magistrate dated 24-5-2014. The petitioner along with two others had rightly been summoned by the trial Judge vide his order dated 24-5-2014. Consequently, this petition having no force is hereby dismissed in limine. ARK/A-153/L Petition dismissed.