MUHAMMAD EHSAN vs The STATE

1. SALAHUDDIN AHMED, J.-This appeal by special leave is from an order of a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore, dismissing a revisional application from an order of a First Class Magistrate rejecting the appellant's objec--tions to the maintainability of the complaint against the appellant under sections 420, 468, 471 and 109 of the Pakistan Penal Code by a Civil Judge, Lahore.

2. There was a civil suit instituted before the said Civil Judge by one Mohammad Abid son of Mohammad Janan Khan, against the appellant's brother Mohammad Janan Khan. It was subse-- quently discovered that somebody had fraudulently brought the suit in the name of the said Mohammad Abid. The learned Civil Judge had a preliminary enquiry and ordered that a complaint be filed against the appellant and in consequence the aforesaid com--plaint was made against the appellant sometime in the year 1965.

3. It has transpired that the appellant was merely a witness to the service of summons and not a party to the said suit.

4. Leave to appeal was granted by this Court to consider the question whether the Presiding Officer of a civil Court could lodge a complaint against a witness under sections 420, 468 and 471 of the Pakistan Penal Code in pursuance of the provisions of section 195 of the Criminal Procedure Code.

5. Among these sections the only section that finds mention in section 195, Cr. P. C. Is section 471 but the offence thereunder is available, only against a party to the particular proceeding. In the present case it is sought to be availed of against a witness to the service of summons. It is therefore, obvious that section 195, Cr. P. C. Is not applicable to the facts of the case.

6. The question, however, is whether under the general law such a complaint can be filed, and if so, whether it has been legally entertained and proceeded with.

7. It is not disputed that the Civil Judge as a private complain--ant could file the aforesaid complaint.

8. It has, however, been contended that in such an event it was imperative that the complaint was first examined under section 200, Cr. P. C. Before any further proceeding could take place.

9. Admittedly this course has not been followed in the present case and several witnesses have already been examined. The questions, therefore, arise whether the omission to follow the procedure has vitiated the entire proceeding and whether the defect can be remedied under section 537, Cr. P. C. As it stands amended today.

10. It is no doubt true that in the absence of the application of section 195, Cr. P. C. The correct procedure for the Magistrate was to have first examined the complaint before taking further action in the matter. It, however, appears that the appellant subjected himself to the jurisdiction of the Magistrate and never raised any objection to the procedure adopted and even did not raise any such objection before the Magistrate or even in his revisional application before the High Court. In our opinion, therefore, the appellant cannot be allowed to raise this objection for the first time before this Court.

11. Apart from this, however, the alleged defect is not fatal to the proceeding, and it is curable under section 537, Cr. P. C. As has been held by this Court in the case of Shamim v. The State and another (PLD 1966 SC 178). No prejudice has been alleged by the appellant and in our opinion, no prejudice has been suffered by him. The view held by this Court is consistent with the view of the Full Bench in Bharat Kishore Lal Singh Deo v. Judhistir Modak (AIR 1929 Pat. 473).

12. There is no substance in this appeal and it is accordingly, dismissed. We order the appellant to appear before the Magistrate and direct that the case be disposed of with utmost expedition.