P L D 1995 Lahore 261 (PLP)

This judgment will dispose of (1) Criminal Miscellaneous No.209-Q of 1994 (Tapir J4ved etc. v. Abdul Razzaq etc.), (2) Criminal Miscellaneous No. 243-Q of 1994 (Muhammad Hafeez-etc. v. Muhammad Munir etc.) and (3) Criminal Miscellaneous No.304-Q of 1994 (Muhammad Sher etc. v. State etc.), because a common question of law is involved in the three petitions. The brief facts of each petition are stated hereinbelow: Criminal Miscellaneous No 209-0 of 1994 (Tapir Javed etc. v. Abdul Razzaq etc.) . .,

2. Respondent No. l filed a private-complaint under section 337?AI/452/506/148/149, P.P.C. on 7-7-1994 against petitioners Nos. 1 to 11 in the Court of A.C. Pindi-Bhattian. Learned Magistrate recorded the statements of the complainant and two witnesses. The case was transferred to R. M., Pindi?Bhattian on 1-8-1994. R.M. on 2-8-1994 summoned all the 11 petitioners as accused to face trial. '

3. This order was impugned in this Court. It is, inter alia, submitted by the learned counsel that the petitioner No. 1 lodged case F. I. R. No. 99 of 1994 under section 337/147/148, P.P.C. at P.S. Pindi-Bhattian against respondent No. l and five others. The filing of private-complaint was mala fide and was a counterblast to the said case in which a titrge number of the petitioners' relations were summoned as accused.

4. He further submitted that the evidence in the preliminary proceedings and the order of summoning the accused was written by the Reader/Clerk of the Magistrate. Learned Magistrate only initialled the said statements and the order without applying judicial mind to the facts of the case.

5. The record of the case was summoned. The` perusal of the same supports the. contention of the learned counsel. No memorandum was prepared nor any note was written in the relevant interim orders. Criminal Miscellaneous No. 243-0 of 1994 (Muhammad Hafeez et~. v. Muhammad Munir etc.)

6. Muhammad Munir, respondent No. 1 filed private-complaint under section 506/452, P.P.C. in the Court of Magistrate 1st Class, Lahore against Muhammad Hafeez and another. After recording the evidence of two witnesses at preliminary stage, the learned Magistrate summoned Muhammad Hafeez and another through his order dated 28-6-1994. Learned counsel submitted that the evidence and the order were written in the hand of the Reader/Clerk of the Court. The learned Magistrate failed to perform his judicial duty by not recording the evidence in his own hand or under his dictation. The petitioners were summoned as accused to face criminal trials without application of judicial mind.

7. Report was summoned from the learned Magistrate. He stated in the report that the evidence of complainant and one witness was in fact recorded by his Reader under his dictation. He admitted that no memorandum to that affect was prepared nor any note is present in the relevant interim orders. Criminal Miscellaneous No 304-0 of 1994 (Muhammad Sher etc. v. State etc.)

8. Muhammad Khan, respondent No.2, filed private-complaint under section 354/324 etc. before the learned -Judicial Magistrate, Mianwali. The statements of the complainant and two witnesses were recorded, in the preliminary proceedings. The petitioners and another were summoned by the learned Magistrate as accused to face criminal trial on 5-10-1994. The impugned order was challenged in this Court by the petitioners/accused on the ground that the statements of P.Ws. and the order were written by the Reader/Clerk of the Magistrate and the Magistrate only initialled the same. It is further submitted by the learned counsel that the petitioners were summoned as accused to face criminal trial by the learned Magistrate without application of his judicial mind and in violation of the mandatory provisions of law.

9. Report was summoned and the learned Magistrate stated that the evidence and the order was written by the Reader under his dictation as he was slightly indisposed. No memorandum was prepared by the learned Magistrate nor there was any note in the interim order in that respect.

10. Learned counsel for the respondents in each case respectively controverted the submissions and relied on the reports of the learned Magistrates.

11. I have heard the learned counsel for the parties at length in all the three petitions and have perused the record.

12. Learned counsel for the petitioners in all the three cases submitted that sections 354 to 357 of the Cr.P.C. have given a mode of recording evidence in the criminal cases. The provisions are mandatory and deviation thereto is an illegality not curable under section 537, Cr.P.C. They have relied on numerous authorities of the Superior Courts including 1994 PCr.LJ 380 and 340, 1993 MLD 2045, 1987 PCr.LJ 2499 and 1982 PCr.LJ 949.

13. As stated earlier there is not an iota of evidence in the whole proceedings in all the three cases that the evidence was recorded in the presence or under the dictation of the learned Magistrates. It has been held time and again by the superior Courts that the recording of evidence shall be done by the Magistrate himself in a criminal case. Chapter XXV of Cr.P.C. provides a clear mode of recording of evidence in the trials and inquiries. The provisions contained in sections 354 to 357, Cr.P.C. very clearly lay down that a Magistrate trying a case shall record the evidence in his own hand or for reasons to be recorded, under his dictation and in his presence. These provisions are mandatory and deviation thereof could subvert the entire judicial system. The object of law is that a Magistrate recording tie evidence himself or under his dictation and, in his presence, continuously applies his judicial mind to the facts of the case. By not doing so, it cannot be presumed that he actively and continuously applied his judicial mind in the proceedings while making a decision for summoning a citizen as accused to face criminal trial. Learned counsel are correct in saying that a great prejudice has bean caused to the petitioners by the impugned orders. It is a matter of pain that despite the issuance of directions time and again by the superior Courts in different authorities, the Magistrates are, not complying with their obligations in the discharge of their judicial duties.

14. In view of what has been stated above, I have no option but to declare preliminary proceedings and the orders of summoning the petitioners in all the three cases as accused to be illegal and without lawful authority. In the interest of justice, all these cases are not being quashed but are being sent back to the concerned Magistrates. They are directed to strictly apply the provisions of law in the recording of evidence at preliminary stage and thereafter proceed afresh in accordance with law.

15. With these observations, these petitions are partly accepted. Office shall immediately, send back the record in Criminal Miscellaneous No.209-Q/94 (Tahir Javed etc. v. Abdul Razzaq etc.) to R.M., Pindi-Bhattian. January 23, 1995. N.H.Q./T-101/L ?????????????????????????????????????????????????????????????????????????????????????????? Cases remanded.