HABIB BANK LTD. Versus SOUTHERN COMMERCIAL CORPORATION, KARACHI

1. This application under section 561-A, Cr.P.C. is moved on behalf of applicants Muhammad Ali Kazi, son of Kazi Muhammad Akber and Mushtaq Ahmed, son of Rehmatullah who alongwith respondents Javed Qadir, son of Ghulam Qadir and Saeed Ahmed, son of Muhammad Paryal are accused in a direct complaint Case No.77 of 1992 pending in the Court of Judicial Magistrate, Dadu for having committed offences under sections 500, 501 and 502, P.P.C. The applicants are seeking quashment of the said proceedings on the following facts and grounds.

2. The complainant (respondent No.2) Dr. Muhammad Amin, son of Khair Muhammad had filed a direct complaint in the Court of Civil Judge and F.C.M., Dadu on or about 13-2-1992 against the aforesaid four accused persons. In the said complaint it was mentioned that the respondent No.2 is a private medical practitioner at Dadu and is also a correspondent of Daily Frontier Post . It was further mentioned that the complainant being a respectable person commands great respect in the eyes of the general public and is also an important office-bearer of the Press Club, Dadu. It was alleged that accused Saeed Ahmed is correspondent of Sindhi Daily Khadim-e-Watan and another Daily Jago . The complainant stated that on account of being correspondent, there was professional hostility between the complainant and accused Nos.l and 2 and that the said accused are jealous of the popularity and reputation of the complainant.

3. It was alleged that the two accused Saeed Ahmed and Javed Qadir conspired to damage the name and reputation of the complainant by spreading false news against him with a view to defame the complainant in the eyes of public. In this regard accused Saeed with the cooperation of accused Javed Qadir got published a news item appearing in the daily Khadim-e-Watan of 5th February, 1992 which contained false and unfounded news. Excerpts from the said newspaper have been reproduced in the complaint. From the wording of the said news, the complainant states these are aimed to harm his reputation and the impression which was given is that the complainant used to medically treat the dacoits and had a hand in the dacoity on a certain train. In these circumstances, the complaint was lodged by the complainant.

4. It appears that after recording the statement of complainant and his witnesses, the learned Magistrate was pleased to take cognizance vide order, dated 29-2-1993 whereby he registered the case for offences under sections 500, 501 and 502, P.P.C. and also issued bailable warrants for the production of the accused. In these circumstances, the present application has been filed.

5. After hearing the learned counsel for the applicants, this matter was admitted for regular hearing and thereafter notice was issued to the complainant and so also to the two co-accused who are shown as pro forma respondents. All the respondents are residents of Dadu, the two co-accused Javed Qadir and Saeed Ahmed appeared today but Dr. Muhammad Amin, the complainant, has chosen to remain absent without any intimation.. After hearing the learned counsel for the applicants, it transpired that the learned Magistrate while dealing with this matter adopted an illegal course. It appears that all the statements recorded by the learned Magistrate under section 200 as well as under section 202, Cr.P.C. were not recorded by the learned Magistrate but these have been recorded by his clerk and the learned Magistrate has only initialled the same. As this point was raised, it became necessary to call for the R&P from the lower Court. Accordingly, the R&P has been received and the same has been perused. First of all it appears, the learned Magistrate vide his order, dated 15-2-1993 had ordered that the statement of the complainant be recorded under section 200, Cr.P.C. Accordingly, the statement of the complainant was recorded but the same appears to have been recorded by his clerk. At the foot of the statement under section 200, Cr.P.C. learned Magistrate has passed an order directing that the preliminary inquiry may be held under section 202, Cr.P.C. Accordingly, the statements of the three witnesses were recorded under section 202, Cr.P.C. and these are also in the handwriting of the clerk of the learned Magistrate and the perusal of the entire file indicates that the learned Magistrate used green ink in the pen by which he has passed the orders and initialled wherever necessary. The learned counsel for the applicants submitted if these statements had been recorded by the learned Magistrate himself these would have been in green ink and not in the blue ink in which the statements were recorded. He has further submitted that even if it is presumed that the statements were recorded under the supervision of the Magistrate concerned, such a mode has been observed to be an illegality in several decided cases. On the other hand learned AA.-G. appearing in this case on Court notice has very frankly submitted that it is now a general practice that whenever a direct complaint is filed the Magistrate concerned after passing the order for recording the statement of complainant under section 200, Cr.P.C., invariably such statements are recorded by the clerk concerned on the dictation of the Advocate for the complainant. He has also submitted that even the statements under section 202, Cr.P.C., are also recorded in the like manner. Finally when the enquiry is completed the Magistrate concerned passes the necessary orders.

6. I have considered the points raised by the learned counsel and I have also gone through the entire record. It is quite apparent that the statements of the complainant and his witnesses appear to have been recorded by the clerk of the learned Magistrate and it is also apparent that the learned Magistrate has simply initialled/affixed his signature on the statements. It may be mentioned that the recording of the statements under sections 200 and 202, Cr.P.C., is not a mere formality but these are to be taken very seriously as it is on the basis of such statements that a person is joined as an accused. One cannot lose sight of the fact that when a direct complaint is filed and the statements of the witnesses are recorded before the registration of the case, though it is mentioned "to self" but the Advocate for the complainant is always present. If such a statement is recorded by a clerk of the Court, the possibility cannot be ruled out that such a statement may have been recorded on the prompting of the Advocate for the complainant. I certainly do not mean to say that in all direct complaint cases this would happen but if the statement is recorded by the clerk of the Court even in the supervision of the Magistrate concerned, then too, a lurking doubt is always there regarding the authenticity of such statements. In this regard I may refer to the case of Munshi Ahmed and others v. Moulvi Abdul Hannai. reported in 1987 P Cr. L J 2499:--

7. "In this case after recording the statement of the applicant, the statements of the witnesses were recorded and finally the learned Magistrate summoned the petitioners and the accused to face the charges under section 506, P.P.C. This order was challenged before the Sessions Judge, Bahawalpur by means of a revision application but it was dismissed. Thereafter an application was filed in the High Court under section 561-A, Cr.P.C. to quash the proceedings and the main point raised was that the statements of the complainant and the witnesses in the preliminary inquiry were not recorded by the learned Magistrate himself. It was alleged that the said statements were recorded by the reader of the Magistrate in his absence. The learned Magistrate was summoned to appear in the High Court and he admitted that the statements were recorded by his reader but these were recorded under his supervision. While placing reliance on another reported case on the same point reported in 1982 P Cr. L J 949, it was held that the proceedings are illegal and the said illegality was not curable under section 537, Cr.P.C."

8. In another case reported in 1993 M L D 2045 in the case of Abdul Aziz v. The State:--

9. "In a police challan case all the witnesses were examined and thereafter statement of the accused was recorded under section 342, Cr.P.C. It was pointed out that the statement of the complainant and other four witnesses were not recorded by the Magistrate himself and the same were recorded by the reader under his supervision. It was held the illegality was not curable under section 537, Cr.P.C. As there were certain other legal lacunas, therefore, the accused was acquitted."

10. In the present case there can be no two opinion that the statements of the complainant and his witnesses were not recorded by the Magistrate himself, but these appear to have been recorded by a clerk or the reader of the Court. In view of the above case-law this is an illegality which is not curable and as such the impugned order whereby the cognizance has been taken by the learned Magistrate in this case is not sustainable.

11. It may be mentioned, as a guideline for the Magistrates, whenever a direct complaint is filed the statement of the complainant as well as the statements of the witnesses should be recorded by the Magistrate himself in order to exclude all possibilities of prompting and such statements shall not be allowed to be recorded by the reader of the Court or any clerk. It must also be borne in mind that the implication or non-implication of the proposed accused depends upon these statements and therefore, extra caution and care should be taken so that an innocent person is not made an accused by the complainant who otherwise might succeed in doing so when such statements are recorded by the reader or clerk.

12. In the light of my above discussion the impugned order, dated 29-2-1993 whereby the cognizance was taken by the learned Civil Judge and F.C.M. is hereby set aside and the proceedings against the applicants and respondents Javed Qadir and Saeed Ahmed are hereby quashed.

13. However, if the complainant so desires he can move a fresh direct complaint. A copy of this order may be sent to the learned Sessions Judge/Dadu, learned Sessions Judge/Hyderabad and learned Sessions Judge, Sukkur who might like to look into it from the administrative point of view.

14. N.H.Q./M-1886/K Proceedings quashed.