ALI MUHAMMAD vs BAGH ALI

ORDER

' Ali Muhammad filed this petition under section 561-A, Cr. P. C., for quashment of proceedings in complaint titled Bagh Ali v. Muhammad Ali etc. Under section 204, P. P. C. Pending in the Court of A.

C., Khanewal.

2. Ali Muhammad maintained in the petition that he was an eyewitness in murder case titled State v. Mumtaz etc., pending in the Court of A. C. Khanewal; that Bagh Ali respondent was father of one of the accused in the said murder case and had been pressing him to refrain from appearing as an eye-witness and had also been threatening him (petitioner) with dire consequences; that the respondent instituted a complaint against him (petitioner) and his two brothers on 1st January, 1974, the allegation being that he and his brothers had destroyed his (petitioner's) signatures on the settlement file of 1949, relating to the allotment of shop; that the complaint was sent under section 202, Cr. P. C. To Jam Jan Muhammad, Magistrate 1st Class, Khanewal, by the A. C. Vide order dated 17th January, 1974, without recording the statement of the complainant and thus, the A. C.

Committed an illegality; the Magistrate 1st Class Khanewal, after recording the statements of complainant and Muhammad Arif, made a report that no offence under section 204, P. P. C. Was made out the said report was received by the A. C. But the A. C. Without recording any further evidence, summoned him (petitioner) under section 204, P. P. C., vide his order dated 4th April, 1974.

3. The learned counsel for the petitioner contended that Bagh Ali complainant-respondent had made a prayer in the complaint that the Police be directed to inquire into the offence and take action against culprits according to law and since the Magistrate was not asked to take congnizance of the complaint, it could not be termed as a complaint; that the proceedings in the complaint were vitiated as the A. C. Committed an illegality in sending the complaint to the Magistrate 1st Class, Khanewal, without recording the statement of the complainant as provided in section 202, Cr. P. C., that there was no evidence on the file to come to the conclusion that the petitioner had committed an offence because the only allegation against the petitioner was that on 8th December, 1973, at about 11-30 a. m., the petitioner was seen sitting at the Court room near the Ahlmad and nobody saw the petitioner tearing away relevant portion and the petitioner could not be summoned on mere conjectures.

4. I have considered the arguments of the learned counsel for the petitioner. Complaint has been defined in section 4(h), Cr. P. C. It is provided therein that complaint means the allegation made orally or it writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a Police Officer. In the instant case, the complainant had made allegation in writing to the A. C. With a view to his taking action under the Code and thus, it was covered under the definition of complaint. Under the provisions of section 202, Cr. P. C., the Magistrate could make an enquiry himself or send it to any Magistrate subordinate to him for enquiry or to send it to the Police Officer for investigation. A prayer had been made in the application that the complaint be sent to the Police for enquiry into the offence and action taken against culprits according to law. It these circumstances, I cannot agree with the contention of the learned counsel that the present complaint was not covered under the definition of complaint given in section 4(h), Cr. P. C.

' I find from the record that the learned A. C. Sent the complaint to the Magistrate 1st Class without recording the statement of the complainant. In doing so he committed an illegality. It is clearly provided in proviso to section 202, Cr. P. C., that, save where the complaint has been made by a Court, no such direction be made unless the complainant has been examined on oath under the provisions of section 200, Cr. P. C. It was obligatory on the learned A. C. To examine the complainant on oath, before directing any enquiry under section 202, Cr. P. C. Such an examination was a pre- requisite. If an order is passed forwarding the complaint to another Magistrate without B recording the statement of the complainant, it is without jurisdiction and cannot form the basis of further action.

5. Magistrate 1st Class, Khanewal, to whom the complaint was sent under section 202, Cr. P. C.

Came to the finding after recording the statements of the complainant and Muhammad Arif that prima facie no case under section 204, P. P. C. Was made out. But in spite of it, the learned A. C.

Without examining any other witness, summoned the petitioner under section 204, P. P. C. No body stated that he had seen the petitioner tearing away the portion of the file containing signatures.

The sole evidence on the record was that on 8th December, 1964, at about 11-30 a. m., the petitioner was seen sitting near the Ahmad in the Court-room. No presumption could be drawn against the petitioner for his meeting the Ahmad of the Court on on 8th December, 1964.

6. For the reasons stated above, I accept this petition and quash the proceedings against the petitioner.