' The petitioners seek quashment of proceedings pending in the Court of Magistrate 1st Class, Sadiqabad in a case titled as Gaman Khan v. Jan Muhammad etc.
2. The brief facts leading to the above-noted petition are that petitioner No,1 is the father of petitioners Nos.2 to 6. On 27-6-1994, the respondent Gaman Khan filed a private complaint under section 506/148/149, P.P.C. Alleging that about five years ago petitioner No,1 had solemnised the Nikah of his daughter Mst. Manzooran alias Asma Sehar with one Abdul Qadir. Later on he resiled from that arrangement. The matter was referred to the complainant for arbitration. According to the complainant, he gave verdict in favour of Abdul Qadir whereupon petitioners felt offended and openly threatened him with dire consequences. It was further alleged that two days prior to the lodging of the complaint when the petitioner alongwith Ghulam Qadir and Faqira were going towards their houses, Muhammad Yousaf petitioner armed with hatchet and other petitioners were armed with Sotis met him on the way. Jan Muhammad asked his sons to kill the complainant whereupon petitioners started belabouring him with their respective weapons. The petitioner gave him hatchet blows on his buttock from the wrong side. The P.Ws. Attempted to protect the complainant but they too were threatened. However, on the request of Abdul Qadir and Faqira P.Ws., the complainant was let off. It was alleged that in case the P.Ws. Had not intervened the complainant would have been done to death. These two P.Ws. Were produced during the trial whose statements are to the effect that the accused-petitioners threatened the complainant and asked his sons to kill him. The statement of the complainant, Ghulam Qadir (P.W.1), Faqira (P.W.2) are consistent so far as this part of the prosecution story is concerned i,e, that the complainant was threatened and that petitioner No,1 asked his sons to kill the complainant.
3. The learned trial Court summoned the petitioners vide its order, dated 4-7-1994 which is to the following effect:- {{URDU TEXT}}
4. The petitioners challenged the order in revision which was dismissed by the learned Additional Sessions Judge, Rahimyar Khan on the ground that there was material before the learned Magistrate for summoning the accused persons in the said case, and that the point urged by the petitioner that the offence under section 506, P.P.C. Is not made out from the preliminary evidence warranted a deeper appreciation of evidence which could be undertaken at the revisional stage.
5. In support of this petition, the learned counsel for the petitioners has made following submissions:--
(i) That there is a delay of two days in lodging the complaint;
(ii) That the respondent-complainant was never medically examined;
(iii) That the impugned order of summoning the petitioners by the learned Magistrate is not a speaking order;
(iv) That the ingredients of, section 506 of the P.P.C. Are not attracted in the facts and circumstances of this case; and
(v) That the learned trial Court is bound to record the evidence by itself.
6. The learned counsel for the respondent-complainant on the other hand controverted the submissions of the learned counsel for the petitioners and submitted that it is not denied that the injuries suffered, by the respondent-complainant were not serious to call for medico-legal examination but the fact remains that he was threatened which attracts the mischief of section 506, P.P.C. He further argued that a deeper appreciation of prosecution evidence at this stage cannot be warranted moreso when the petitioners unsuccessfully filed a revision and could not invoke the provisions of section 561-A, Cr.P.C. As there is no abuse of the process of Court which could warrant quashment.
7. In para. 3 of the petition, the petitioners have alleged that the private complaint has been filed against the petitioners with a view to harass them and they have explained the background to that as well. According to the petitioner No, 1 his younger daughter aged 8/9 years, a student of third class, had filed a suit for jactitation of marriage as one Abdul Qadir got a false Nikahnama prepared and started proclaiming that she (her daughter) was his wife. The said Abdul Qadir has filed written statement in the suit and the respondent-complainant is one of the witnesses of Abdul Qadir. The civil suit was filed on 27-1-1994 whereas the respondent-complainant filed complaint on 27-6-1994. It is urged that the filing of this private complaint is a counterblast and is aimed at putting pressure on the petitioner to have the said civil suit withdrawn.
8. The respondent-complainant appearing in Court admits that he is a witness for defence in the civil suit filed by the petitioner's young daughter against Abdul Qadir. He also does not deny that petitioner's daughter is 8/9 years old and in the body of the complaint filed by the respondent while narrating the motive part of the alleged attack on him he alleged that Jan Muhammad petitioner got his daughter's Nikah performed with Abdul Qadir but later on the resiled from his commitment. Abdul Qadir, according to the respondent-complainant, is his relation and when the matter was brought before him, he gave verdict in favour of the said Abdul Qadir. The petitioner and his sons were annoyed over this and two days prior to the lodging of the complaint, petitioners and others having armed themselves with hatchets and Sotis gave him beating and threatened him.
9. The prosecution story is repellent to common sense for the following reasons:--
(i) If the petitioner had got a civil suit filed for jactitation of marriage it was for Abdul Qadir (who claimed to be the husband of Mst. Asma Sehar) to have felt provoked and not the petitioner.
Similarly Gaman respondent-complainant also must have felt enraged as his decision made in favour of Abdul Qadir had been flouted by the petitioner. No wonder he went to the extent of becoming a defence witness in the civil suit filed by the petitioner's daughter.
(ii) The respondent-complainant alleged that the petitioner alongwith five I others came armed with hatchets and Sotis and gave him beating but surprisingly he did not receive a single injury.
(iii) The filing of suit for jactitation of marriage is earlier in time i,e, it was filed on 27-1-1994 whereas the private complaint was filed on 27-6-1994. Thus, the filing of the private complaint is prima facie a counterblast to the civil remedy which the petitioner party had attempted to seek by filing the suit for jactitation of marriage.
10. Yet another point urged for the quashment of proceedings is that the I learned trial Magistrate did not record the preliminary evidence himself. The learned counsel for the respondent- complainant did not deny this assertion but submitted that this is an irregularity which is curable under section 537 of the Cr.P.C. The effect of a Magistrate's not recording the preliminary evidence himself has come up for consideration before this Court in the following cases:--
(i) Abdul Aziz v. The State 1993 M LD 2045.
(ii) Munshi Ahmad and others v. Maulvi Abdul Hannan 1987 PCr.LJ 2499.
In both the above-referred cases, the recording of evidence by a I person other than a Magistrate was considered to be an illegality and proceedings were quashed.
10. For what has been discussed above and following the precedent case-law referred to above, the proceedings arising out of the complaint filed by the respondent-complainant pending in the Court of a learned Magistrate 1st Class, Sadiqabad titled as Gaman Khan v. Jan Muhammad etc. Are not tenable in law and are hereby quashed being an abuse of the process of the Court.