' Luqman and six others filed this petition under section 561-A, Cr.P.C. For setting aside the order of learned Sessions Judge, Vehari, dated 9-8-1995, whereby he accepted the revision petition filed by Qamar Abdul Ghafoor respondent No,2 against the order of Judicial Magistrate Section 30, Vehari by which all the petitioners seven in numbers were acquitted in case F.I.R. No,334/90, dated 23-12- 1990 registered under section 337-L(ii)/34, P.P.C. At Police Station Danewal, District Vehari.
2. Originally the F.I.R. Was registered under section 452/33-F(ii)/ 148/149, P.P.C. But later on section 452, P.P.C. Was deleted and Ghulam Mustafa, Iftikhar Ahmad and Mst. Hajran petitioners were challenged whereas petitioners Luqman, Mahmood-ul-Hassan, Mst. Rukayya and Mst. Raisa Bibi were declared innocent and placed in column No, 2 of the report under section 173, Cr.P.C. During trial, after recording the statement of Mst. Nasreen Qamar, the accused's/petitioners, who were 'placed in Column No,2 of the challan were summoned to face trial and charge was framed under section 337-L(ii), P.P.C. To which the petitioners pleaded not guilty and after recording the evidence, learned Ilaqa Magistrate vide his impugned order, dated 10-7-1995 acquitted all the accused's/petitioners. Being aggrieved by the acquittal order, Qamar Abdul Ghafoor respondent No,2 filed a criminal revision under section 439-A/435, Cr.P.C., which was accepted by the learned Sessions Judge, Vehari on 9-8-1995 and he set aside the order of acquittal of the petitioners and remanded the case to the learned Magistrate for recording of evidence and deciding the case afresh in accordance with law.
3. The petitioners assailed the order of learned Sessions Judge, Vehari, dated 9-8-1995 through this petition on the grounds that learned Sessions Judge erred in holding that the trial Magistrate did not record the evidence in his own hand; that he had not given certificate regarding his inability to record the evidence and that the observations of the learned Sessions Judge that Dr. Muhammad Afzal was a material prosecution witness of the case who was neither produced nor given up by the prosecution and that it was the duty of the Court to ascertain the names of the witnesses from the record and to procure their attendance. According to the learned counsel, this observation is also alien to law and the choice of producing the prosecution witnesses was the prerogative of the prosecution and the trial Court was not supposed to fill the lacunas of the prosecution case, because the prosecution never claimed or requested the Court to record the statement of Dr. Muhammad Afzal as a prosecution witness or as a Court-witness. He further submitted that even no application was submitted before the trial Court by the complainant/respondent No,2 to summon said Dr. Afzal. Learned counsel also submitted that it was not mandatory for the trial Court as observed by the learned Sessions Judge to reduce into vernacular, the statement of lady Dr. Mst.
Nasreen Atique Bajwa. Further submitted that this lapse did not cause any prejudice to the complainant/respondents. The lady doctor was cross-examined at length and for the purposes of Qanun-e-Shahadat her evidence was complete in all respects. Further argued that on account of the procedural lapses on the part of the prosecution the petitioners should not suffer. The learned counsel also argued that the evidence of the prosecution witnesses was recorded in the presence of the learned trial Magistrate and under his personal direction and superintendence and the same was signed by the trial Magistrate as required under section 356, subsection (1), Cr.P.C., to ensure the accuracy of the record. According to the learned counsel the absence of any certificate or memorandum by the trial Magistrate could not lead to the inference that the evidence was recorded in the absence of the learned trial Magistrate, is besides the Inspector Legal, complainant's private counsel was also present and they both led the prosecution evidence.
Further argued that the alleged omission does not vitiate the proceedings as no miscarriage of justice occurred and the respondents were not prejudiced in any manner.
4. I have heard the learned counsel for the parties and have gone through the record.
5. The learned Sessions Judge, Vehari has given a number of reasons for setting aside the order of the learned Magistrate which I propose to deal with serialism.
6. The first ground taken by the learned Sessions Judge is that the learned Magistrate did not record the statement of complainant in his own hand and apparently not under his supervision and direction and that he has not given any certificate regarding his disability to record the statement of the complainant himself. The statement of the prosecution witnesses were recorded and read over to the witnesses. The statements were duly signed by the learned Magistrate. The question, therefore, is whether the objection taken by the Sessions Judge has any substance in it.
Although there is nothing to indicate that the statements were not recorded by the Magistrate in his own hand, yet I shall presume for deciding this petition that in fact, it was not so recorded and that it was reduced to writing by the Ahlmad or Reader of the Court. There is no material on record to suggest that the statements of the witnesses were not recorded in the presence, hearing and under the personal direction and superintendence of the Magistrate. There is no reason to suppose that the Magistrate had not performed his judicial duties with due regard to form and procedure. In these circumstances of the case, the well-known maxim "Omnia praesumunture rite ease octa" is fully applicable. This principle is statutory recognized in the Evidence Act. It can well be presumed that that evidence was recorded in the presence, hearing and under the personal direction and superintendence of the Magistrate. There is nothing on record to rebut this presumption and I had not been able to discover any ground whatsoever for assumption, which the learned Sessions Judge has made to the effect that the statement was not recorded in the hand of the Magistrate. I am, therefore, not satisfied that any irregularity had been committed by the learned Magistrate in recording the statement of the complainant.
6. As far as the objection that Magistrate did not give certificate regarding his disability to record the statement himself as required under section 356, subsection (4), Cr.P.C. Is concerned, although it is necessary that a Magistrate not recording the evidence himself had to prepare a memorandum of evidence, as required by law, the omission to do so by itself does not vitiate the proceedings unless it results in failure or miscarriage of justice and the irregularity if any is curable under section 537, Cr.P.C. Reliance is placed upon PLD 1950 Lah. 135, PLD 1951 Lah. 228, PLD 1958 SC 392 and PLIA 1959 Lah.
186. The evidence in this case was recorded in the presence of the State Counsel and the learned counsel for the complainant. No objection was raised by any of them at the time of recording of evidence. It is not established that any prejudice was caused to the complainant or the accused.
7. Similarly non-preparation of Urdu translation of the statement of lady doctor recorded in English by the Magistrate would not vitiate the proceedings as the statement was recorded in the presence of the learned counsel for the complainant and A.D.A. And learned counsel for the accused.
8. I have gone through the impugned order passed by the Magistrate on 10-7-1994. I fully agree with the observation of the learned Sessions Judge that the impugned order has been passed in slip-shod manner without discussing the evidence and the defense version. Learned Magistrate in his judgment copied all the statements and by writing "I have gone to rough the record of the case.
The arguments and the points raised by the defense counsel are quite forceful and convincing to which A.D.A. And the prosecution has got no answer. I, therefore, fully agree with the points raised by the defense counsel. The case of the prosecution is highly doubtful and prosecution has failed to prove its case". Above quoted paragraph would show that the learned Magistrate did not disclose or mention what grounds he considered and on what basis he found the arguments to be forceful and convincing. For what has been stated above, I hold that the impugned order passed by the Judicial Magistrate Section 30, is illegal and improper which is not sustainable in the eye of law, being not a speaking order. However. I do not fully agree with the impugned order passed by the learned Sessions Judge, dated 9-8-1995. The order to the extent of recording the evidence as a whole is set aside. However, in the interest of dispensation of justice the trial Magistrate is directed to record the evidence of Dr. Muhammad Afzal and afford an opportunity to the accused to rebut the same and thereafter to re-record the judgment strictly in accordance with law.
' This petition under section 561-A, Cr.P.C. Is disposed of in the above said terms.