P L D 1980 Lahore 431 (PLP)

This is a petition for quashment of proceedings in a criminal case peding in the Court of Mr. Aurangzeb Magistrate First Class, Lahore. The petitioner alongwith two other persons has been summoned to answer a charge under section 500/501/502, P. P. C. in a complaint filed by Muhammad Sadiq Khan respondent No.

1. The petitioner has contended that' the aforementioned complaint is frivolous and has been filed by respondent No. 1 with the sole objet of causing harassment to him. According to the petitioner criminal proceedings. have been initiated against him by the respondent as he has failed to get property bearing No. S-90-R-30 situated at Circular Road, Lahore transferred in his name after protracted litigation before the Settlement Authorities. The aformentioned 'property has been duly transferred to the petitioner by the Settlement Department and is presently the object-matter of a civil suit instituted by respondent No. I against the petitioner. The petitioner has also challenged the order of the learned trial magistrate whereby he issued notice to the petitioner and two other persons for appearance in Court as the said order was passed by him on the report of the police to whom the complaint filed by respondent No. 1 had been referred for further inquiry by the learned trial Magistrate but without recording the statement of respondent No.

1. The petitioner has also questioned the orders of the learned trial Magistrate passed on 28-8-79 and 10-9-79 for issuing non-bailable warrants of arrest against the petitioner.

3. After admitting the present petition to hearing notice was issued to the State in the. first instance. Later on, notice was also issued to Muhammad Sadiq Khan respondent No. 1 who was represented by a counsel at the time of hearing of arguments in the case.

4. Muhammad Sadiq Khan respondent No. 1 filed a complaint in the Court of Ilaqa Magistrate, Lahore against the petitioner, the Chief Editor, `Daily Mashriq', Lahore (Ziaul Islam Ansari) and Mr. Iftikhar Mirza, a reporter of the aforementioned newspaper contending that a false and defamatory news was published in the `Daily Mashriq', Lahore in its issue of 7-12-78 that a case under Martial. Law Regulation 33 had been registered against respondent No. 1 as he had submitted frivolous petition to the Martial Law Authorities against the petitioner regarding the transfer of a property situated at Circular Road, Lahore. It was alleged that respondent No. 1 had made serious allegations against the petitioner that he had got the aforementioned property transferred in his name in connivance with the Settlement Authorities and by committing forgery because the property has already by been transferred to respondent No. 1 and Mst. Rashida Begum. On enquiry it was found by respondent No. 1 that the news was published after the petitioner had supplied copy of F. I. R. No. 513 of 1978 to the Chief Editor and reporter of the `Daily Mashriq', Lahore. Respondent No. 1 also obtained a copy of the aforementioned F.

1. R. from the Police Station Old Anarkali, Lahore. He found that it was in respect of an accident case registered under section 279, P. P. C. and had nothing to do with him. On. receipt of the complaint filed by respondent No. 1 the Ilaqa Magistrate marked it to the S. H. O./Incharge Police Post Krishan Nagar for inquiry and report. After receipt of the Police report which disclosed that a prima facie case had been made out against the petitioner alone,' the learned Ilaqa Magistrate heard the arguments of the counsel of respondent No.

1. He came to the conclusion that a prima facie case was also made out against the Chief Editor and Reporter of `Daily Mashriq', Lahore. He accordingly issued notices to them for appearing in Court on 30-7-79. Notices issued by the Court, however, could not be served as it was reported that the petitioner. The Chief Editor and Reporter of the `Daily Mashriq' Lahore had refused to accept service, whereupon non-bailable warrants of arrest were issued against them for 12-8-79 on which date the case was further adjourned to 28-8-79 as the warrants of arrest bad remained un-executed. On 18-8-79 the petitioner submitted an application praying for withdrawal of non-bailable warrants issued against him and for allowing him bail for appearing in Court. This application was allowed on 30-8-79 and the petitioner was admitted to bail. The petitioner thereafter appeared in Court on 10-9-79 and 23-9-79 but the warrants of arrest issued against the Chief Editor and the Reporter of the `Daily Mashriq', Lahore remained unexecuted. Since the petitioner has already been allowed bail by the learned trial Magistrate and orders dated 28-8-79 and 10-9-79 challenged by the petitioner no longer affect him it is not necessary to consider the petitioner's prayer for setting aside the said orders.

5. I have heard the parties counsel. Muhammad Sadiq Khan respondent No. 1 has filed complaint under section 500/501/502, P. P. C. on the basis of a news published in the `Daily Mashriq', Lahore on 7-12-78. It is contended that the aforementioned news was baseless and was got published by the petitioner to defame respondent No. 1 and to lower his position in the eyes of his relatives and friends. It is not possible to determine a this stage whether the petitioner was responsible for publication of the, aforementioned news or not as this question can be determined only after evidence has been produced by the parties in support of their respective/ contentions. It is true. that litigation is going on, between the petition? and respondent No. 1 over the transfer of some property by the Settlement Department but it is difficult to say that respondent No. 1 has filed the complaint against the petitioner merely on account of aforementioned litigation. As noticed above respondent No. I was forced to initiate criminal proceedings against the Chief Editor and the Keporter of `Daily Mashriq', Lahore and the petitioner who according to them had supplied .material for the publication of the news about the registration of a case under Martial Law Regulation 33 against him (respondent No. 1). It cannot be said that respondent No. 1 by filing a. complaint against the petitioner and others has abused the process of any Court so as to justify interference by this Court under section 561-A, Cc. P. C.

6. The petitioner's contention that the learned trial Magistrate had not followed the correct procedure in the present case as he had forwarded the complaint filed by respondent No. 1 to the police for inquiry without recording the statement of respondent No. I which was clearly in violation of. the provisions of section 200, Cr. P. C., which requires a Magistrate taking cognizance of an. offence on a complaint to at once examine the complainant upon oath has also been considered. Failure of' the learned trial Magistrate to record the statement of respondent No. 1 before sending the complaint to the Police for inquiry is merely an irregularity which is curable under section 537, Cr. P. C. Reference in this, connection is made to Shameem v. The State and others (1) and Muhammad Ihsan -v. The State (2).

7. For the foregoing reasons I see no force in the present petition and the same is dismissed. s. G. D. ?????????? Petition dismissed. (1) P L D 1966 S C 178 (2) 1971 S C M R 227