1987 P Cr (PLP)

Abdul Hameed v. The State 1982 P Cr. L J 949 ref. Rana Sardar Ahmad for Petitioner. M.A. Hamid for the State. M.A. Farani for the Complainants‑Respondent. In brief the facts of this case are as follows:‑ Maulvi Abdul Hannan on 5‑8‑1983 filed a complaint against Munshi Ahmad etc. petitioners, under sections 506, 448 and 504, P.P.C. in the Court of E.A.C. Ahmadpur East. The learned Magistrate did not immediately record the statement of the complainant. On 21‑8‑1984 the statement of Maulvi Abdul Hannan complainant was recorded. The complaint was adjourned to 2‑10‑1984 when the statements of Muhammad Ismail P.W. and Muhammad Ramzan P.W.2 were recorded. After considering the preliminary evidence the learned Magistrate summoned Munshi Ahmad, Muhammad Amin and Jamil accused to face charge under section 506, P.P.C. vide order 19‑1‑1985, Munshi Ahmad, etc. challenged this order before the learned Additional Sessions Judge, Bahawalpur who vide order dated 24‑6‑1985 dismissed their revision. Hence this petition.

2. The main ground urged in support of this petition for quashment was that the statement of complainant and statements of witnesses during preliminary hearing of the complaint were not recorded by the learned Magistrate himself. It was alleged that these were recorded by the Reader of the Magistrate in his absence. The learned Magistrate was summoned to appear in this Court. On 17‑8‑1985 he admitted that the preliminary evidence was recorded by his Reader on‑account of his pre‑occupation in executive duties. He however. added that the statements were recorded under his supervision. This factual position is admitted by all the learned counsel appearing in this) petition. As such relying on Abdul Hameed v. The State 1982 PCr.LJ 949, I hold that the preliminary proceedings held by the learned Magistrate were illegal and that the said illegality was not curable under section 537, Cr.P.C. Resultantly impugned order dated 19‑1‑1985 and 24‑6‑1985 are set aside. The complaints of Maulvi Abdul Hannan respondent No.2 is remanded back to the Illaqa Magistrate who will himself record the statement of complainant and the witnesses, if any, produces in the preliminary hearing of the complaint and proceed further in accordance with law. The office is directed to remit the record of this case to the Illaqa Magistrate, Ahmadpur East immediately where Maulvi Abdul Hannan respondent will appear on 23‑7‑1987. This petition is accepted and disposed of as above. S. G. D. /M‑388/L Complaint remanded