1. MUHAMMAD AFZAL SOOMRO, J.---The applicant has filed this application for quashment of Direct Complaint No,8/2001 re-Ali Anwar Bhayo v. S.S.P. Sanaullah Abbasi and others, pending in the Court of Vth Additional Sessions Judge, Shikarpur.
2. The record shows that initially the Respondent No,1 Ali Anwar Bhayo had filed two consecutive constitutional petitions being C.P. No,S-4 of 2001 and C.P. No,S-99 of 2001, before this Court for registration of F.I.R. The first one was dismissed as withdrawn and the latter was disposed of advising the petitioner to file a direct complaint. Consequently, the respondent No,1 filed the above mentioned direct complaint before the learned Sessions Judge, Shikarpur, which is sought to be quashed in these proceedings.
3. The case of the respondent No,1 as put forth through direct complaint is as under:-- "It is reported that I am an Advocate practising at Shikarpur Town. I am also legal advisor of Sardar Haji Kour Khan alias Haji Mahboob Ali Khan Bhayo and others. Generally, I am appearing in the cases on their behalf. On 27-12-2000 at about 6-00 a.m., morning I and Sardar Haji Koura Khan were discussing over the election and other matters at his bungalow situated in Nabi Shah Mohalla, Shikarpur, where Sardar Bux son of Imam Dino Bhayo, Muhammad Nawaz son of Haji Ramzan Bhayo and Muhammad Bux Khan son of Khudadad Khan Bhayo were also available. At about 10-00 a.m. Morning all of a sudden the accused persons, namely, (1) Sanaullah Abbasi, S.S.P.
4. Shikarpur, (2) Taj Muhammad Noonari, D.S.P. Headquarter, Shikarpur, (3) Abdul Sami Leghari, D.S.P., Khanpur, (4) Ghulam Sarwar Abro, S.H.O., Lakhi Dar Shikarpur, (5) Ahsan Ahmed Sharchoond, S.H.O.
5. Staurt Ganj, Shikarpur, (6) Imtiaz Ali Domki S.H.O. Sultan Kot P.S., (7) Muhammad Sadiq Odho, S.H.O.
6. Police Station Jagan at Hamayoon and (8) Pathan Khan Gudani, S.H.O. Police Station New Foujdari, Shikarpur along with 100/120 police personnel duly armed intruded into the bungalow and started breaking the articles of bungalow, chairs, sofa sets and glasses of windows and then forcibly entered the room where Sardar Koura Khan, myself, Muhammad Bux Khan, Sardar Bux and Muhammad Nawaz were available. Then accused Sanaullah Abbasi commanded other accused persons to point their weapons towards us and he ordered that nobody should leave his seat. After that, accused Sanaullah asked co-accused Ahsan Sharchoond to take the briefcase lying on the table in front of Sardar Koura Khan, directing him further to arrest Koura Khan and his nephew Muhammad Bux and take them to Police Station Lakhidar. He also threatened Koura Khan to settle the matter, of Wagons with Pathans. I asked accused Sanaullah to behave properly and not to take law in their hands, on that they also threatened me. After that, under the directions of accused Sanaullah Abbasi, the other accused persons arrested Haji Koura Khan, his nephew Muhammad Bux Khan and went away taking the briefcase, in which an amount of Rs,100,000 and some important documents were lying. Later on, I came to know that Haji Koura Khan and Muhammad Bux have been illegally detained at P.S. Lakhidar under the supervision of accused Ghulam Sarwar Abro. I then contacted the respectables of the locality and after illegal detention for 7/8 hours, Haji Koura Khan and Muhammad Bux were released by accused Ghulam Sarwar Abro under the orders of accused Sananullah Abbasi."
7. The learned Sessions Judge, Shikarpur at the first instance recorded the statement of complainant/respondent No,1 on 28-5-2001 and ordered for conducting preliminary enquiry. During preliminary enquiry, the learned Joint Civil Judge and FCM, Shikarpur recorded the statements of witnesses Haji Koura Khan Bhayo and Muhammad Nawaz Bhayo and then report of preliminary enquiry was sent by him to the learned Sessions Judge, Shikarpur. In the meanwhile, the direct complaint stood transferred to the Vth Additional Sessions Judge, Shikarpur. The learned 5th Additional Sessions Judge, Shikarpur vide order dated 8-3-2002 took cognizance and holding that a prima facie case under sections 427, 506(2), 451, 342, 220, 119, 147, 149, P.P.C. Is made out.
8. Accordingly, bailable warrants were ordered to be issued against the applicant as well as the other accused persons named in the compliant.
9. Mr. Muhammad Ayaz Soomro, learned counsel for the applicant has contended that it is unbelievable that the applicant, being a responsible officer and incharge of Police Department at district level holding the post of SSP, Shikarpur, could have acted in such a illegal way. He further contended that the simple reason for involving the applicant and other police officers of Shikarpur District in such a case is nothing but a fragile attempt on the part of the respondent No,1, who, on the face of complaint itself, appears to be an agent of Koura Khan Bhayo, only to exert illegal pressure upon the police of entire district to allow their hooliganism in Shikarpur District. The counsel for the applicant next contended that the learned 5th Additional Sessions Judge, Shikarpur had also erred in holding that no prima facie case is made out. He contended that while taking cognizance, in fact the statements of complainant and his witnesses were not properly appreciated by the learned Additional Sessions Judge. He further contended that during the preliminary enquiry the statements of witnesses were not recorded by the learned Joint Civil Judge and FCM, Shikarpur in his own handwriting, therefore, such statements having no value in the eye of law, cannot be safely belied and relied upon. He next contended that the illegality committed by the learned Magistrate by not recording the statements of witnesses in his own handwriting is not curable under the law, as such, the entire proceedings including the order of the learned 5th Additional Sessions Judge, Shikarpur, whereby the direct complaint was brought on regular file, stands vitiated. Learned counsel relied upon the cases of Muhammad Ali Kazi v. The State 1994 PCr.LJ 430, Jan Muhammad v. Gaman Khan 1995 PCr.LJ 1371 and Muhammad Saleem v. Fazal Muhammad 2001 SCM R 1738.
10. As against the arguments of counsel for the applicant, Mr. Aijaz Ali Shah, Advocate, appearing for respondent No,1/complainant opposing the application, contended with vehemence that the applicant is nominated in the direct complaint with specific role played by him and that it was under his supervision that Sardar Koura Khan and his nephew were arrested from their residence in presence of the respondent No, 1/complainant. He lastly contended that since the Court has taken cognizance in the matter., therefore, it would be appropriate to allow the trial Court to decide the case on merits.
11. Mr. Mushtaq Ahmed Kourejo, learned State Counsel, after going through the case-law cited by learned Counsel for the applicant, has candidly conceded that the illegality committed by the learned Magistrate by not recording the statements of witnesses himself being not curable under the law, is sufficient to hold that the entire proceedings of direct complaint are illegal.
12. I have heard learned counsel for the respective parties, perused the material available on record very cautiously and have gone through the citation referred to by the learned counsel for the applicant.
13. The perusal of statements of witnesses Haji Koura Khan and Muhammad Nawaz recorded under section 202, Cr.P.C. Shows that these statements were not recorded by the Magistrate himself.
14. There is no any footnote in the end of these statements that the same were written down by the Reader or clerk of the Magistrate concerned under his dictation. In this view of the matter, it would be unsafe to say that these statements of witnesses were recorded by learned Magistrate himself or even in his presence. The inference which can be drawn from the above is that these statements of witnesses were written down by somebody i,e, to say by the Reader or Clerk of the learned Magistrate, or by the police in his absence and the learned Magistrate had simply signed over them. The learned Magistrate appears to have taken the matter very lightly and treated the job of conducting preliminary enquiry a simple routine work thereby he violated the provisions of section 355, Cr.P.C. This further gets support from the observations made in the cited cases of Muhammad Ali Kazi, Jan Muhammad and Muhammad Saleem (supra).
15. In the case of Muhammad Ali Kazi it was observed that non-recording of statements of witnesses under section 202, Cr.P.C. During preliminary enquiry by the Magistrate himself was an illegality not curable under section 537, Cr.P.C.
16. Furthermore, the perusal of direct complaint does not pinpoint any valid reason for the applicant, who was at that time posted as S.S.P., Shikarpur means the commanding officer of Police Department at District level, to have participated in such an illegal activity. The reasons, which the respondent No,1/complainant has tried to attach to the happening of the alleged incident, appears to be the dispute between Sardar Koura Khan Bhayo and Pathans over the ply' g of Wagons on some route from Shikarpur. In my humble view, this oes not appeal to reason that an officer of such a high rank would personally interfere in such a trifling dispute until and unless some evidence is brought on the record to show that such an officer has got some relation with either of the party or that he has done something wrong to settle some previous score with the party actually aggrieved at his hands. In these circumstances, allowing such proceedings to continue would amount to abuse of process of law.
17. Upon the above discussion, I am of the considered opinion that the direct complaint is liable to be quashed. Accordingly, the direct Complaint No,8/2001 filed by respondent No,1 stands quashed.
18. By short order dated 28-3-2006 the application was allowed and above are reasons for the same. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.