In May, 1989 petitioner Mir Alam lodged a complaint with S.D.M., Mansehra for the prosecution of Gohar Rehman etc. Respondents for their alleged commission of certain offences falling under section 447/406/427/379/384./382, P.P.C. The S.D.M. Sent this application to another Magistrate for disposal. It subsequently proceeded in the Court of Mr. Mohammad Gastasab Khan, M.I.C.
Mansehra who on 20-11-1990 passed an order of acquittal of the accused under section 249-A, Cr.P.C. Being of the opinion that the charge was groundless. Mir Alain being not satisfied with this order of the learned Magistrate impugned it before the Additional Sessions Judge, Mansehra under section 435, Cr.P.C. In Cr. Revision Petition No.22/12, of 1991. The learned Sessions Judge after hearing arguments on both sides in the matter dismissed the petition on 24-7-1991 being of the view that the Magistrate had exercised jurisdiction properly and in accordance with law. Mir Alam has now approached this forum probably under section 561-A, Cr.P.C. By invoking the inherent jurisdiction of the High Court. He request that judgments and orders of both the Courts below may be set aside and conviction of the accused-respondent recorded on the charge as aforesaid.
2. A perusal of the record would indicate, that Mir Alam petitioner has not been examined on oath under section 200, Cr.P.C. At any stage .Of the complaint either by the S.D.M. Himself before whom the matter was initially placed or by the Magistrate who was subsequently entrusted with the disposal of the complaint by the S.D.M. Statement of the complainant on oath makes foundation of the case for the issuance of process as sections 200 and 202 are supplementary of one another. An omission to examine the complainant on oath as required under section 200, Cr.P.C. May not vitiate trial in case the accused has not been prejudiced-by such an irregularity and no failure of justice has thereby taken place, still the procedure referred to in this section must be strictly complied with because non-compliance thereof may lead to confusion. In fact an accused person cannot be summoned in subsequent proceedings by a magistrate without first examining the complainant on oath. However, the Supreme Court in Shamim v. The State and Mohammad Bashir, PLD 1966 Supreme Court 178 has held, that failure to examine complainant on oath before issuing process is a mere irregularity curable under section 537 of the Criminal Procedure Code. The Supreme Court has been pleased to observe, "that the language of section 200 of the Code of Criminal Procedure does not lead to the inevitable inference that the examination of a complainant is a since qua non of valid proceedings, in all circumstances".
3. Mir Alain had complained that the accused-respondents had allegedly cut and uprooted few trees from his land situated in Khasra No.5008 in village Nallah-cum-Manoor and caused him damage to the extent of more than. Rs.50. Evidence of Mir Alam complainant, his brother Bagga and that of one Wali-ur-Rehman was recorded by the learned Magistrate. The respondents in the meanwhile moved an application for their acquittal under section 249-A, Cr.P.C on the ground that the accusation was baseless. The learned Magistrate after hearing the prosecutor and the accused and for reasons recorded in his order came to the conclusion, that the charge was groundless and there was no probability of the accused being convicted of any offence even if the recording of the entire evidence is concluded in the case and forthwith passed an order of acquittal of the accused. The learned Addl. Sessions Judge declined to interfere in revision as he did not see any error in the exercise of jurisdiction by the lower forum.
4. I am aware of the inherent powers of this Court under section 561-A, Cr.P.C. To make such orders as may be necessary to give effect to any order passed under this Code, or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. But I have not been shown anything wrong with the impugned judgments as recorded in the lower forums. The evidence adduced in the matter including the statement of the complainant himself had been properly looked into by the Magistrate who after hearing the prosecutor and the accused and for reasons mentioned in his judgment considered that the charge was groundless and there was co probability of the accused being convicted of any offence. He thus recorded an order of their immediate acquittal without writing any further evidence into the complaint which he could pronounce at any stage of the case. Similarly no error in the judgment of the Additional Sessions Judge passed in revision has been pointed out that may attract interference by this court under its inherent jurisdiction.
5. I find no merits in this petition and dismiss it in limine along with the connected Criminal Revision petition No.44 of 1991 which has arisen in similar circumstances.