2001 PLP 2933 (YLR)

Ch. Azmat Khan for Respondent No.2. Khalid Navid Dar and Ch. Azhar Hamid for Respondent No.3. Through this criminal revision the petitioner seeks setting aside of impugned order passed by the Judicial Magistrate on 22‑6‑2001 whereby he has dismissed private complaint filed by the petitioner against the private respondents

2. Brief facts, as per contents of the private complaint are that the petitioner and one Amer Riaz carried on business of transacting in shares and securities at Lahore Stock Exchange Building. They later on changed their locations at different short interval. Neither of them was member of the Stock Exchange and none of them was competent to carry on that business. Riaz Amin controlled the purchase whereas Aamer Riaz was incharge of trading. The petitioner was persuaded by Aamer Riaz to enter the business of trading in stocks exchanges through them. Respondents No.1 and 5 also arranged for respondent No.1 a loan of Rs. one million from National Bank of Pakistan, WAPDA House Branch. Respondents Nos. 1 and 5 asked the petitioner to deliver them the share which he has been purchasing in small quantity. Petitioner was fraudulently induced to deliver the share as security of trading. Respondents Nos.1 and 2 telephonically informed the complainant that they had purchased on the complainant account share in ICI, Sui Southern Gas, Fauji Jorden Fertilizer, Ibrahim Fibre, Dhan Fibre, D.G. Khan Cement and L.T.V. Modarba, which was false and incorrect and even name of the broker was not disclosed to the petitioner. Consequently the petitioner filed complaint, which was dismissed on 22‑6 2001 by the Judicial Magistrate, Lahore. Hence this revision petition.

3. Learned counsel for the petitioner contends that the order of dismissal of the private complaint has been passed without applying independent judicial mind and is also passed on extraneous grounds. He further contends that prima facie sufficient evidence has been produced by the petitioner before the trial Court in order to make out a case for summoning the respondents by the Judicial Magistrate. Learned counsel further contends that the complaint has been dismissed by misinterpreting the law and provisions of different Acts. It was a fit case in which respondents should have been called and the case should have been decided on merits, as required by law, Lastly he contends that the order, dated 22‑6‑2001 is liable to be set aside.

4. On the other hand Sheikh Muhammad Azam, Advocate, learned counsel for respondent No.1 has opposed this petition on the ground that the dismissal order has been passed after considering all the material facts and is supported by the facts and circumstances of the case and there is no answer for the grounds taken by the learned Judicial Magistrate for the dismissal of this private complaint. It is further contended that writ petition was filed by the petitioner against the S.H.O. for the registration of the case which was not accepted as the matter was found to be of civil nature. It is further contended that under section 25 of the Security Exchange Ordinance, 1969 private individual could not file the private complaint. It is further contended that the trial Court has rightly dismissed the private complaint, as the complainant was not examined on the same day which the basic requirement of section 200, Cr.P.C. Reliance is placed on 1996 MLD

604. It is further contended that the complaint been filed under section 409, P.P.C. as well which is not within the jurisdiction of Civil Court and the private complaint was rightly dismissed as has not been filed in the Special Court. It is further contended that the every proposition laid down in the impugned order has been supported by the case‑law. It is further contended that the true facts have not been mentioned in the private complaint hence the complaint was rightly dismissed. Therefore, the revision petition merits dismissal. Learned counsel appearing on behalf of respondents Nos.2 and 3 have also opposed the revision petition.

5. I have heard arguments of learned counsel for the parties and perused the record. Private complaint was filed under sections 419/420/406/409/468, P.P.C. All the offences mentioned in the private complaint were triable by the learned Judicial Magistrate. Only exception can be taken under section 409, P.P.C., which is reproduced as under:‑‑ "Section

409. Criminal breach of trust by public servant or by banker. merchant or agent. ‑‑‑Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. " From the perusal of section 409, P.P.C. it shows that if, the offence is committed by the persons mentioned in the said section, only then provisions of this section will apply. Allegations levelled by the petitioner against respondent No.3 as a broker and lease of property to private respondents as broker. Prima facie section 409, P.P.C. was attracted and the findings of learned trial Court that the respondent No.1 being a public servant was not triable by the trial Court, the Court was established under the Pakistan Civil Law Amendment, 1958. This ground seems to be fallacious as it is no where mentioned that the respondent No.1 being a public servant was entrusted property or dominion over the property was due to his post as public servant. It is alleged that respondents No.1 and 5 were entrusted with the property and they claimed to be a broker and were dealing with Stock Exchange. Hence the trial Court was competent to hear the case even under section 409, P.P.C. Other grounds taken by the learned Magistrate for the dismissal of the complaint were also not applicable to the facts and circumstances of the case. The learned trial Court has failed to look into section 23, subsection (vii) of the Security Exchange Ordinance, which does not bar the right and remedy available to the petitioner under the other laws, hence the ground taken for dismissal of this complaint is not correct. The third ground has been taken that the statement of the complainant was not recorded on the same day when the complaint was entertained as it was the mandatory provision of law. Reliance is placed on 1996 MLD

604. Relevant portion is reproduced as under:‑‑ "

2. The learned Additional Sessions Judge had passed the impugned order mainly on two grounds, first that the statement of the petitioner was not recorded by the learned Magistrate in conformity with the provisions of section 200, Cr.P.C. and secondly the statements of the complainant and his witnesses of Hafiz Muhammad Ismail were not. recorded on prescribed oath and both the omissions were fatal to the maintainability of the complainant."

6. I do not agree with the learned counsel for respondent No.1 that omission to record statement of the complainant on the same day is illegality and not irregularity. The failure to examine the complainant on the same day is irregularity and is curable under section 537, Cr.P.C. and the dismissal of complaint by the Judicial Magistrate on this score is illegal and unlawful. I am fortified by the view taken by the august Supreme Court of Pakistan in Shamim v. The State (PLD 1966 SC 178) in which the Honourable Supreme Court has held as under:‑‑ "Held, that the better view seems to be that (failure to examine complainant before issuing process) is a mere irregularity curable under section 537 of the Criminal Procedure Code." This fact is also supported by Zahid Khalil v. Wajid Ali and another (1990 PCr.LJ 713). The relevant portion is reproduced as under:‑‑ ‑‑‑‑ Trial Court no doubt should have recorded statement of complainant immediately on receipt of complaint but such omission‑was not an illegality but only curable irregularity not affecting merits of case, particularly when accused petitioner was not shown to have been prejudiced due to said irregularity. " Perusal of the abovesaid case‑law makes it crystal clear that non‑recording of statement of the complainant on the same day is not illegality but irregularity and it is curable under the law. Hence case has not been decided by the trial Court on merits and the complaint has been dismissed by not applying the judicial mind on technical reasons which were not sufficient for dismissal of the complaint. Hence the revision petition is accepted and the impugned order is set aside. The case is remanded to the trial Court for fresh order on merits. N.H.Q./F‑64/L Revision petition accepted