The petitioner has sought quashment under section 561-A, CI.P..C. Of the order of the learned Additional Sessions Judge, Rahimyar Khan passed on the 4th of April, 1993, whereby he not only dismissed the revision filed against the order dated 20th of December, 1992 of the Civil Judge 1st Class exercising Section 30 Powers, Rahimyar Khan but also dismissed the complaint filed under section 200, Cr.P.C. By the petitioner against the respondents.
2. The learned Additional Sessions Judge had passed the impugned order mainly on two grounds; first that the statement of the petitioner was not recorded by the learned Magistrate in conformity with the provisions of section 200, Cr.P.C. And secondly the statements of the complainant and his witness of Hafiz Muhammad Ismail were not recorded on prescribed oath and both the omissions were fatal to the maintainability of the complaint.
3. It is admitted fact that the petitioner has filed the complaint on the 24 of October, 1992 and his preliminary statement was recorded late on the 15th of November, 1992. Section 200, Cr.P.C. Opens with the following language: -- "A Magistrate taking cognizance of an offence on complaint shall at one examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate."
4. The section further provides that complainant may not be examined if he files complaint in writing before transferring the case under section 192, Cr.P.C. Or when the complaint has been made by a Court or by a public servant. The case of the petitioner is not covered under provisos to the above section. The language of section 200, Cr.P.C. Is very clear that when the Magistrate taking cognizance of the offence on the complaint shall at one examine the complainant uponth oath. The complainant had to be examined on the very date the complaint was presented before the Magistrate and who taking cognizance of the matter instead of recording the statement of the complainant put off the case to the 5th of November, 1992. The petitioner had not admittedly impressed upon the Magistrate the urgency of his, examination under the law. The omission being violative of mandatory requirement of law was rightly held by the learned Additional Sessions Judge to be fatal to the case.
5. Another serious infirmity was with respect to examination of the complainant and his witness on improper oath, it was ruled by this Court in Muhammad Nawaz v. The State NLR 1991 Crl. 282 that the Courts are obliged to administer oath to a Muslim witness/accused in form prescribed by High Court under section 8 of Oaths Act after its amendment in 1981 and non---compliance renders statement of Muslim witness recorded on solemn affirmation as inadmissible vitiating entire proceedings. Admittedly the oath was not administered to either of them under the law and the statement not recorded with present mode of oath, renders the statement ineffective and illegal and cannot be read against the accused/respondent which in turn would mean that there was no evidence against the respondents. The learned Additional Sessions Judge in the circumstances had to not only reject the revision petition but also to dismiss the complaint. The learned counsel for the petitioner has failed to explain as to how the impugned order suffers' from abuse of process of the Court or frustrated ends of justice. This no interference under section 561-A, Cr.P.C. Is called for. The petition is dismissed.