1. This revision is directed against an order dated 10th April 1978, passed by the learned Sessions Judge, Sibi, directing issuance of notices for appearance to the petitioners on a direct complaint in a case where the Sessions Judge was already seized of the matter on a police challan.
2. An F. I. R. Was lodged by one Rahim Bakhsh with Sohbatpur Police Station of District Nasirabad on 16th April 1967. He stated that his younger brother Ali Murad who was living with the complainant, was married, three days previously to Mst. Naz Bibi. On the day following the marriage accused Ali Murad told the complainant, and his brother Taj Muhammad (petitioner No. 1 before me) that he had, found his wife to be non-virgin. On 16th April 1967, at about 3 a.m. While the complainant and other members of the family were sleeping in the courtyard of their house, they heard certain shrieks from the southern side. On coming to the place the complainant saw his younger brother inflicting hatchet blows on his wife Mst. Naz Bibi. She died within his view. Two other persons namely Ahmed Khan and Hussain Bakhsh had also come and seen the occurrence.
3. The police investigated the case and submitted a challan, against Ali Murad, in the Court of S. D. M.
4. Jhatpat, which was forwarded, ultimately for trial to the Sessions Judge, Sibi. However, on 7th May 1977, respondent No. 2 Mustafa fled a direct complaint before the S. D. M. Alleging that the present petitioners were also involved in the said murder alongwrth Ali Murad. According to the story given by him in the direct complaint these three persons were present, variously armed with different weapons, and saw to it that the deceased did not escape the hatchet blows being given to her by accused Ali Murad. The S. D. M. Forwarded this complaint as well to the Sessions Judge, who, without examining the complainant on oath. Passed the impugned order summoning the accused persons for trial, along with the police.
5. Mr. Basharatullah, the learned counsel for the appellant contends that the order of the learned Sessions Judge suffers from illegality on two scores :- "(1) No order for summoning the accused could be made unless the complainant was examined on oath under section 200, Cr. P. C.
(2) The learned Sessions Judge having taken cognizance of the offence, as a result of the police investigation, could not join any other person as an accused, unless he had some material before him, having recorded some evidence, to show that the petitioners were involved in the case."
6. In support of his first contention the learned counsel states that according to section 200, Cr. P. C.
7. The learned Sessions Judge was hound examine the complainant on oath before issuing any process against the petitioner. He further contends that this view is substantiated by the provisions of clause (b) of subsection (2) of section 265, and the proviso to subsection (1) of section 202, Cr. P.
8. C.
9. Section 200, Cr. P. C. Requires a Magistrate, taking cognizance of an offence, to examine the complainant on oath and to reduce the substance of such examination into writing. This he has to do immediately after receiving the complaint. This duty cast upon a Magistrate can be departed from in three cases. According to the first exception contained in proviso (a) to the section, the Magistrate is not required to examine the complainant if the complaint is in writing 'and he decides to transfer it to another Magistrate under section 192; or has to send the case to the Court of Session for trial. Second case is that of complaint in writing by a Court or a public servant. Third exception refers to a case where the complaint has been transferred to a Magistrate and the transferring Magistrate had already examined the complainant on oath.
10. Reading first and the third exceptions together, it is clear that in case a Magistrate decides to proceed to issue a process the complainant is to be examined on oath. He can either be examined by the Magistrate who initially takes cognizance of the case, or in case the matter is transferred to another Magistrate, them by such transferred Magistrate. A process should not issue without such examination. The Supreme Court has held is Shamim v. State (PLD1966SC178) (Not cited at the bar) that the language of section 200 of the Code of Criminal Procedure does not lead to the inevitable inference, that, in all circumstances, the examination of a complainant is a sine qua non of valid proceedings, and that the defect amounts to a mere irregularity, which, apart from the question of prejudice, is insufficient to vitiate the proceeding. Their Lordships held, such a defect, is curable under section 537, Cr. P. C. While discussing the history of this section their Lordships of the Supreme Court observed as follows;--- "In the Code of Criminal Procedure, Act X of 1872, express provision was made in the last clause of section 144, to the effect that where the complainant has been made by petition and the Magistrate neglects to examine the complainant, the trial of the person accused, shall not be set aside on this ground. This provision was omitted from the Code of 1898. In view of the provisions contained in section 537 of the Code, which serve the same purpose in more general terms. The Explanation to that section says that in determining whether any error, omission or irregularity in any proceeding under this Code had occasioned a failure of justice, the Court shall have regard to the fact whether the objection could or should have been raised at an earlier stage in the proceedings."
11. Then their Lordships had taken note of the fact that the petitioner before them bad not taken such objection at the earlier stage; he had appeared before the trial Magistrate in persuance of the summons; had in fact cross-examined the complainant and the witness and that he had raised the objection for the first time in the High Court. At that stage, their Lordships observed, they would be very reluctant to comment on the merits of the case, and advised the appellant to fight out his case in the Magistrate's Court to its conclusion and if aggrieved to exercise the usual right of appeal.
12. This brief summary would show that the law as laid down by the Supreme Court in Shahim s case is that omission to examine a complainant on oath is an irregularity, and does not amount to an illegality; that it does not vitiate the proceedings; that such defect is curable under section 537, Cr.
13. P. C. Provided no prejudice is shown to have been caused to the accused person by such omission; and finally that objection in this behalf should be taken at the earliest stage. It has to be noted that their Lordships endorsed the observations made in Hashim Haji Sharif v. Mir Khan Jan (PLD 1950 Bal. 7) wherein the then learned Judicial Commissioner in Baluchistan had pointed out that one of the main objects of section 200, Cr. P. C. Was to protect the public against false, frivolous or vexatious complaints filed against .Them in criminal courts and that Magistrates must not lightly accept written complainants and proceed to issue process until they had thoroughly shifted the allegations made against the accused and were satisfied that a prima facie case had .Been made out against those who were accused of criminal offences. But the law discussed above does not make it obligatory for a Court of Sessions to examine the complainant on oath B under section 200, Cr. P. C: before issuing any process. This is the view taken in Haji Kamal Khan v. Muhammad Naeem (PLD 1979 Quetta 69). The view is fully substantiated by the provisions of section 200 of the Code of Criminal Procedure. Its exception (a) before the Law Reforms Ordinance, 1972, provided an exemption from examination of the complainant on ' oath, if the complaint was in writing and the Magistrate taking the cognizance transferred the case to under section 192 to another Magistrate.
14. Proviso (c) to section 200 exempts the transferee Magistrate to do likewise, if the transferring Magistrate had already carried out such examination. This means if the case remained with a Magistrate the examination of the complainant on oath had to take place either before the Magistrate taking cognizance or, before the transferee Magistrate. But while amending proviso (a) of section 20,0, and enlarging the scope of exemption in cases where the case was to be transferred to the Sessions, no corresponding amendment was made in its proviso (c).
15. This leads to the conclusion that if a complaint is made in writing, an the case is triable by Court of Session, then complainant may examined by the Magistrate taking initial cognizance of the offence; but ' he does not do so the Sessions Judge is not obliged to examine him on oath. This is also evident from the procedure of trial before the High Court and Courts of Session as given in Chapter XXII-A of the Code.
16. Proviso to section 202(1), Cr. P. C. Is not attracted to the facts of the present case. Subsection (1) of section 202, Cr. P. C empowers any Court to order an inquiry, or investigation in a case of direct complaint before deciding the issuance of process. And when the Court has decided to follow this course it is further required, unless the complaint be from another Court, to examine the complainant on oath under the provisions of section 200. In the present case the learned Sessions Judge did not choose to follow this course.
17. Section 265-C, Cr. P. C. Is contained in the new Chapter XXII-A of the Code. It lays down a rule for providing copies of certain documents, free of cost, to the accused, at least seven days before the trial starts. This section lists the documents separately which are to be provided to the accused in cases instituted upon a police report and in those instituted upon a direct complaint. The list of documents in the. Case of second category of cases appears in subsection (2) of section 265-C, Mr. Basharatullah particularly relies upon the provisions of clause (b) of this subsection, which reads as follows :- "(b) copies of the complaint and any other documents which the complainant has filed therewith and the statements under section 200 or section 202 shall be supplied free of cost to the accused not later than seven days before the commencement of the trial."
18. Mr. Basharatullah contends that in view of this provision it is to be presumed that State went under section 200 must be recorded in all circumstances. The argument has, on the face of it, no force.
19. The statements as are enumerated in this clause are to be provided to the accused only if they are available. Reference to such statements in a provision which primarily deals with the subject providing copies, does not mean that such statements must have been recorded in all cases. For instance if Magistrate' does not think it fit to proceed under section 202, Cr. P. C. Then there would be no statements recorded under that section. Similarly clause (c) of subsection (1) of section 265- C requires that in a case instituted upon a police report statements of all witnesses recorded under sections 161 and 164, Cr. P. C. Should be provided. But it is not necessary that statements under section 164, Cr. P. C. Should be recorded in all cases; nor can there be any compulsion to record statements of witnesses under this section in all cases because clause (c) of subsection (1) of section 265-C makes a reference to it. Similarly the reference in section 265-C to statement under section 200 does not make examination by Sessions Judge under that section obligatory.
20. For the foregoing reasons I am of the view that non-examination oil complainant on oath, before the issue of process by the Sessions Judge ha 4D not occasioned any illegality to call for interference of this Court in its revisional jurisdiction.