2003 PLP 1813 (MLD)

Qari Ghulam Mustafa v. Muhammad Younas and others 1996 MLD 604; Muhammad Sharif v. Khan Mir Wali Jan and others PLD 1969 Pesh. 156 and Shamim v. The State and another PLD 1966 SC 178 ref. Syed Iqbal Hussain Shah Gillani for Petitioner. By filing this petition under section 561-A, Cr.P.C., the petitioner has prayed for quashing of proceedings in a private complaint titled Mehr Khatoon v. Muhammad Aslam and others pending in the Court of learned Judicial Magistrate, Jauharabad, District Khushab.

2. The brief facts are that Mst. Mehr Khatoon respondent No.2/complainant filed a private complaint in the Court of learned Illaqa Magistrate, Jauharabad, against Muhammad Aslam and five others, under sections 452, 337-A(i)(ii), 354, 148 and 149, P.P.C. The complaint was presented on 18-8-2001. The statement of the complainant was not recorded on the aforesaid date and the proceedings were adjourned to 1-9-2001 and whereafter the same were adjourned to 12-9-2001, 24-9-2001, 1-10-2001, 11-10-2001, 20-10-2001 and then to 12-11-2001. It was on 12-11-2001 that the statement of the complainant was recorded before proceeding with the: inquiry under section 202, Cr.P.C. The learned counsel for the petitioner has argued that the adjournments for examination of the complainant as allowed by the learned Magistrate were in complete derogation of the provisions of section 200, Cr.P.C. and the said deviation from the procedure is sufficient for quashing of complaint In this respect he has placed reliance on the case titled Qari Ghulam Mustafa v. Muhammad Younas and others (1996 MLD 604 Lahore).

3. The learned counsel for the petitioner has also argued that all the proceedings had been recorded by the Reader of the Court or some other official of the Court whereas law requires that evidence must be recorded by the Presiding Officer of the Court and the evidence can be recorded on the dictation of Presiding Officer when the Presiding Officer is not himself in a position to write down the same. He has argued that on this score also the proceedings of private complaint could not be continued and are liable to be quashed.

4. I have carefully considered the preliminary arguments of the learned counsel for the petitioner. It was held in the case titled Muhammad Sharif v. Khan Mir Wali Jan and others (PLD 1969 Peshawar 156) that failure to reduce into writing substance of examination of complainant under section 200 is a mere irregularity, not amounting to hindrance in the way of valid proceedings. It was held by the Hon'ble Supreme Court of Pakistan in the case titled Shamim v. The State and another (PLD 1966 SC 178) that failure to examine complainant before issuing process is a mere irregularity curable under section 537, Cr.P.C., though language of section 200 does not lead to "inevitable" inference that such examination is a 'sine qua non' of valid proceedings in all circumstances. In the same authority the Hon'ble Supreme Court of Pakistan had held that there is no provision in the Code that failure to follow the provisions of section 200 in respect of examination of the complainant entails invalidation of the proceedings taken and the history of this section apparently bears out the contention that the defect amounts to a mere irregularity and apart from the question of prejudice, would be insufficient to vitiate the proceedings.

5. In the instant case, the contention of the petitioner is that the learned Magistrate had not examined the complainant on oath at once after presentation of complaint and had adjourned the proceedings to a number of dates of hearing and after which the statement of the complainant was eventually recorded on 12-11-2001. In my view, the provision of section 200, Cr.P.C. requiring the examination of the complainant "at once" on oath is merely directory and not mandatory. As such, if the Magistrate had adjourned the proceedings for examination of the complainant, the same cannot be considered as fatal. In the light or the aforesaid authorities, it is clear that even if there is failure to examine the complainant before issuing process, it is a mere irregularity which is curable under section 537, Cr.P.C. Hence postponement or proceedings for recording of statement of the complainant can hardly be considered as an incurable defect. The contention of the learned counsel for the petitioner in that respect cannot be accepted. So far as the second point is concerned, it has been argued by the learned counsel for the petitioner that the statement of the complainant as well as the statement of P.W.2 Mst. Ghulam Aasia had not been recorded by the Presiding Officer of the Court himself and appear to have been dictated to the Reader of the Court or to some other Official and hence the same cannot be considered as valid proceedings because no official of the Court had the authority to record the evidence and it was only the Presiding Officer of the Court who was bound to record the proceedings in his own hand, rather than dictating the same to an official of the Court. He has argued that the learned Magistrate could adopt the aforesaid procedure only when he was himself incapable of recording the said proceedings due to illness or some other reason. He has argued that on this ground also the proceedings before the learned trial Court are liable to be quashed. I am not inclined to accept this contention of the learned counsel for the petitioner as well. The reason is that presumption of correctness is attached to the proceedings of the Court. In this case the learned Magistrate had dictated the proceedings to some official of the Court, and had recorded a certificate at the end of the statement of the complainant, as well as on the statement of P.W.2 Mst. Ghulam Aasia. In the presence of the said certificate it can be presumed that there existed justification for the learned Magistrate, due to some physical disability or otherwise, for dictating the proceedings to the official of the Court in his presence and hearing. No valid ground for quashing of proceedings of private complaint pending before the learned Illaqa Magistrate has been urged in the instant petition and hence the same is accordingly dismissed in limine. H.B.T./M-1997/L Petition dismissed.