2003 PLP 1045 (YLR)

4. Learned counsel for respondent No. 1 has, conversely, argued that sufficient incriminating evidence was available against the petitioner, therefore, the orders passed by the trial Court as well as the revisional Court were in accordance with law and facts of the case and needed no interference. The learned State Counsel has adopted the line of arguments of the learned counsel for respondent No. 1.

5. I have heard the learned counsel for the parties at length and have also gone through the record as well as the precedents cited at the Bar.

6. In the case of Muhammad Zafar Iqbal v. The State and another (supra), the main reason for quashment of proceedings was that the Magistrate had summoned the respondent on solitary statement of complainant, which was not supported by any witness. In the case of Jan Muhammad and others v. Gaman Khan (supra), one of the prime reason for quashment of proceedings was that the story put forward by the prosecution was considered to be repellant to common sense. In the case of Qazi Muhammad Ali and another v. Muhammad Ayub Fazlani and another (supra), the learned Court was of the opinion that provisions of sections 500 and 501, P.P.C. were not attracted in the case and, therefore, the proceedings were quashed. As far as section 355, Cr.P.C. is concerned, it deals with the record in the trial of certain cases by the Magistrates, Inquiries are not mentioned in this section. However, in subsection (1) of section 356, Cr.P.C. the inquiries have also been included and it would be advantageous to reproduce the same. Section 356(1) reads as under:‑‑ "

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. "

7. A bare perusal of the afore‑quoted provision of law makes it crystal clear that the basic essential was the presence of the Magistrate or the Sessions Judge while the evidence was being recorded. In the instant case, the statements of P. W. 1 Fayyaz Ahmad, P.W.2 Sajjad, P.W.3 Muhammad Hanif and P.W.4 Rahim Bakhsh contain the signatures of the learned trial Magistrate and it is apparent from the record that the statements were recorded in the presence of the learned Magistrate, as all the statements contain the following observations:‑‑ "ﺎﻴﻜ ﻢﻴﻠﺴﺘ ﺖﺴﺭﺪﺭﻜ ﻦﺴ" Therefore, a presumption arises that the statements of the witnesses were recorded in the presence, hearing and under the personal direction and superintendence of the Magistrate. While dealing with a similar question, it was held by this Court in case of Anwar Mahmood and others v. Rashid‑uz -Zaman PLD 1959 (W.P.) Lah. 186 as under:‑‑ " .... The essential requirements of section 200, Cr.P.C. are that the substance of the examination of the complainant shall be reduced to writing and shall be signed by the complainant and also by the Magistrate. It is nowhere laid down that substance of the examination shall be reduced to writing by the Magistrate in his own handwriting." It was also observed therein as under:‑‑ "The word 'trial' in section 356 has been used to cover the proceedings which take place in the presence of an accused. That section is inapplicable to examination of the complainant under section 200, Cr.P.C." It was further held by this Court as under:‑‑ "... A Magistrate is not under any legal obligation to make a memorandum of the substance of what the complainant deposes and he does not commit any irregularity in omitting to do so, consequently the proceedings are not vitiated on that account. " It was also laid down in the same case; " .... In cases to which the provisions of section 356 are applicable, although it as necessary that a Magistrate not recording the evidence himself should prepare a memorandum of the evidence as required by subsection (3) of section 356, yet the omission to do so by itself does not vitiate the proceedings unless it results in failure or miscarriage of justice." In the case of Fateh Khan v. The State PLD 1957 (W.P.) Pesh. 122, a learned Division Bench, while commenting on the mode of record of evidence observed that "it would be very difficult for a Sessions Judge to record the entire evidence in a murder case in his own handwriting, particularly, when there was rush of work and it would meet the necessary requirements regarding record of evidence when the same was recorded at the dictation of the Sessions Judge in the presence of the parties in the open Court. The Honourable Supreme Court, in the case of Hazrat Jamal and another v. The State PLD 1958 SC (Pak.) 383, while discussing the provisions of sections 356(3) and 537, Cr.P.C., observed that the failure of Presiding Officer to prepare memorandum of depositions of witnesses was an irregularity curable under section 537, Cr.P.C. The dictim laid down by the Honourable Supreme Court was followed in the case of Riaz Ahmad v. Khalid 2000 PCr.LJ 1527 by this Court.

8. In the instant case, after filing the complaint, statement of complainant Fayyaz Ahmad was recorded as P.W.1. His statement was corroborated by the statement of Sajjad, who appeared as P.W.2 and who had also received injuries during the occurrence. P.Ws.3 and 4 also stated on oath anal corroborated the statements of afore mentioned P.Ws. Besides this; the medico legal certificates relating to Fayyaz Ahmaa complainant/P.W.1 and Sajjad P.W.2 were also placed on record vide Exhs.P.A. and P.B. Therefore, sufficient grounds existed for the trial Court to proceed further with the case and petitioner alongwith other co‑accused was rightly summoned to face trial. The learned counsel for the petitioner has remained unable to satisfy the Court that irregularity, if any, had resulted in failure of justice. The learned counsel could not' point out any jurisdictional infirmity or perversity in the orders passed by the Courts below. The mere fact that the statements of the witnesses were not recorded by the Magistrate himself would not diminish the criminality of the petitioner, or his co‑accused.

9. For what has been discussed above, I am of the considered opinion that this petition has no merit and both the Courts below have acted in accordance with law and facts. Consequently, this petition is dismissed.

10. A copy of this order be sent to the trial Court forthwith. S.M.A.H./G‑245/L Order accordingly.