ZIA ANWAR Versus JAMAL DIN

ORDER

This order will dispose of Criminal Miscellaneous Petitions Nos. 492/Q/74 and 493/Q/74 filed by the same persons i.e. Zia Anwar and Muhammad Iqbal against the same respondents for the quashment of proceedings against them, i.e. (the petitioners) under section 406/420, P. P. C. titled "Jamal Din v. Zia Anwar etc." pending in the Court of a Magistrate in Jhang.

2. The facts giving rise to the petition are that Muhammad Ramzan respondent in Cr. ill. No. 492‑Q/1974 rind Jamal Din respondent No. 1 in Criminal Miscellaneous Petition No. 493/Q/74, filed separate private complaints in the Court of Ilaqa Magistrate, Jhang alleging that they had given their yarn to the petitioners for being processed in the Sizing Plant belonging to the petitioners but the petitioners refused to return the same. The learned magistrate sent the complaint to the Tehssildar for investigation and report, under section 202 Cr. P. C. The Tehsildar examined some witnesses and reported that the facts stated by the witnesses in the preliminary inquiry only disclose a civil dispute relating to rendition of accounts and no criminal offence was made out. He, therefore, recommended that the complaint should be dismissed. The learned Magistrate accordingly dismissed both the complaints on 12‑5‑1974 on the ground that the evidence did not disclose any offence.

3. Both the respondents filed separate revision petitions against the order of the learned Magistrate in the Court of the learned Sessions Judge, Jhang who accepted the same by his order dated 10‑8‑1974 and remanded the cases to the learned Magistrate for `further inquiry'. The learned Magistrate examined one more witness in one of the cases but did not record any further evidence in the other case and issued process to the petitioner (accused in the aforementioned complaints) under section 204, Cr. P. C. the petitioners have filed the two applications under consideration for the quashment of the proceedings pending in the Court of the learned trial Magistrate.

4. The respondents strenuously opposed the applications and submitted that the only remedy available to the petitioners was to have filed a revision petition against the remand order' passed by the learned Sessions Judge, Jhang.

5. Learned counsel for the petitioners on the other hand submitted that having omitted to file revision petitions against the remand order, they were still entitled, under the law, either to file revision petitions against the order of the learned Magistrate directing the issuance of process to them, or for quashment of the entire proceedings before the learned trial Magistrate on the ground that the evidence of the witnesses examined by the Tehsildar and the Magistrate do not disclose any criminal offence and, as such, the proceedings were liable to be quashed.

6. I am afraid I cannot bring myself to agree with this view, after having gone through the statements of the aforementioned witnesses because I feel that they do disclose a prima facie offence of misappropriation, in each case, and the proceedings in the two cases cannot, therefore, be quashed on the ground that no criminal offence is made out against the petitioners. I am however of the view that since the learned Sessions Judge had remanded the case to the learned trial Magistrate with specific directions, inter alia," to record the statements of the accused in order to obtain their point of view." The i.e. the learned trial Magistrate) has erred in ordering issuance of process against the accused (petitioners), without first complying with the said directions. The relevant portion of paragraph 3 of the judgment of the learned Sessions Judge may be reproduced here for facility of reference:

"The complainant has come up in revision. I have gone through the evidence recorded in the case. The delivery of the goods to the accused has been supported by the witnesses. The magistrate did not record the statement of the accused to know about their viewpoint. There was nothing in the evidence of they witnesses to show question of any settlement of account."

It is evident from the record and is in fact admitted by the State counsel that the learned Magistrate did not take down the statement of the accused (present petitioners) so as to obtain their side of the story. 7 he explanation for the alleged transaction, given by the petitioners before me, appears to be very satisfactory and if the learned Magistrate had afforded them an opportunity to give their explanation it is quite likely that he might not have considered proper to issue the process, because op reading the statements of the P. Ws. together with the statements of the two accused (petitioners), he may have come to the conclusion that no offence under section 406 P. P. C. is made out.

7. I, therefore, set aside the order of the learned Magistrate issuing notice to the petitioners and direct that he should first comply with the directions of the learned Sessions Judge, Jhang; make further inquiry into the case and also to record statements of the two accused persons.

8. With these observations the petitions are disposed of.

Order accordingly.