' Applicants against whom learned Ilnd Additional Sessions Judge, Dadu has issued bailable warrants after admitting a private complaint and after holding of preliminary enquiry, for the offence under section 324, Qisas and Diyat Ordinance, the instant quashment application has been filed on the grounds that issue of such process amounts to abuse of process of law.
' Brief facts of the case are that respondent No,1 filed a private complain before the Court of 1st Class Magistrate, Johi which was transferred to the Sessions Court, Dadu from where it was marked to the IInd Additional Sessions Judge, Dadu who examined the complainant under section 200, Cr.P.C. This matter was further referred for holding of preliminary enquiry by the First Class Magistrate, Johi who recorded the statements of P.Ws. Ghulam Shabbir and Manzoor Ali as provided under section 202, Cr.P.C. And referred his report to the learned lInd Additional Sessions Judge who after hearing counsel for the complainant and after perusing statements of the complainant and his witnesses as well as report of F.C.M. Johi hold that prima facie, it appears that a case under section 324, P.P.C. Has been made out against the applicant and, therefore, he ordered issuance of process in the shape of bailable warrants in the sum of Rs,5,000 each against the present applicants. This is the order, dated 25th July, 1997 which is being sought to be quashed through the present proceedings.
3. I have heard Mr. Noor Nabi Memon, Advocate for the applicant, Mr. Khadim Hussain Unar, Advocate for the respondent No,1 and Mr. Bahadur Ali Baloch, Advocate for the State. It was contended by learned counsel for the applicants that the statements recorded under sections 200 and 202, Cr.P.C. Were not recorded either by the learned IInd Additional Sessions Judge himself or by the F.C.M. Johi; Such statements have been filed an Annexures "B", "C" and "D" to the memo. Of petition. I have examined those statements and it is difficult at this stage, after looking at these statements to say with certainty that these were not recorded by the learned subordinate Judges.
A presumption is attached to the acts performed by the Judicial Officer that such acts and orders were passed as provided by the law. Unless any document is filed or any material is brought on record to suggest that it was not done in a manner provided by law it would be very difficult at this preliminary stage to hold that the acts performed by the two Judicial Officers were not in accordance with law.
4. Mr. Noor Nabi has referred to the case of Muhammad Ali Kazi v. The State 1994 PCr.LJ 430 where a learned Single Judge of this Court held that whenever a direct complaint is filed, the statement of the complainant as well as statements of witnesses should be recorded by a Magistrate himself in order to exclude all possibilities of prompting such statements and that it should not be allowed to be recorded by the Reader or any Clerk of that Court. There is no cavil to this proposition of law but in the instant case no material was placed betore this Court by the learned counsel for the applicant to substantiate his allegation that the statements were not recorded by the Judicial Officers.
5. Mr. Noor Nabi has also referred to the case of Jan Muhammad and others v. Gaman Khan 1995 PCr.LJ 1371 wherein a learned Single Judge of Lahore High Court has quashed the proceedings on the ground inter alia, that the preliminary enquiry was not conducted by the learned Magistrate himself which is not the fact established in the present case. Then he has referred to the case of Syed Mazhar Ali v. Ali Khan and another 1984 PCr.LJ 354 where a learned Single Judge quashed the proceedings on the grounds inter alia, that the statement of prosecution witnesses in that case shows existence of a civil dispute in respect of a dishonoured cheque and, therefore, continuance of such proceedings would amount to abuse of process of law. In the present proceedings this is not the case of complainant. He has also referred to several other authorities in order to show that where continuation of the proceedings before the Trial Court amounts to abuse of process of law such proceedings were quashed. It is settled law that in order to seek quashment of proceeding and that too at the initial stage, where the learned Trial Court has simply issued process after examining complainant and witnesses, puts heavy burden on the applicants/accused to show that such process issued and the proceedings allowed to be continued would amount to abuse of the process of law. Learned counsel for the applicants have filed several documents to show that there was some other dispute earlier pending with the parties and that the F.I.R., lodged at the instance of applicant was disposed-of as cancelled but all these documents do not form part of record of the Trial Court and cannot be considered while deciding an application for quashment of the proceedings. The complainant is entitled to contest or admit such documents which should have been produced by the applicant before the Trial Court and, therefore, I would not look into such documents which do not form part of the proceedings before the Trial Court. If any reference is needed see Syed Anwar Ali Shah v. Yar Muhammad and 3 others 1986 PCr.LJ 1278 where this Court in somewhat similar circumstances allowed the revision application and the order of Magistrate through which proceedings of case pending before him was quashed/set aside wiih the following observations:--- " The conclusion of the learned Magistrate from the said documents is that the accused party (respondents in this case) as well as other villagers do not wish that the complainant Ali Anwar Shah (applicant in this case) should encroach upon plot adjacent to his house which is required by the villagers for matrimonial functions. Obviously the above documents did not form part of police papers produced before the Court for the purpose of framing charge but they came from possession of the accused directly. The learned Magistrate had no power to accept the documents in that manner and consider them as part of the material for purpose of acquitting the accused.
Such documents could only be produced after the case had proceeded either through witnesses to be examined by the accused in their defence or at the time of their statements under section 342, Cr.P.C. So that the complainant had opportunity to furnish clarification about them or produce evidence in their rebuttal. Moreover, excepting the last mentioned document which was certified copy of the order passed by the S.D.M. In some case, the other documents did not appear to have come from the custody of the persons concerned and as such their genuineness was also in doubt. In any case they should not have been allowed to influence the judgment of the learned Magistrate unless the other party namely the applicant was given opportunity to explain about them. As stated above, this was in accordance with prescribed procedure."
6. This is too early a stage to quash the proceedings and in my considered view this all amounts to stifling the prosecution at an early stage without giving an opportunity to the complainant to bring his case on record. No infirmity or illegality was shown by the applicants in the evidence so far brought on record during preliminary enquiry. Mere technicalities, which, in my opinion do not vitiate proceedings, will not warrant interference of this Court under section 561-A, Cr.P.C. I am fortified in my view by the case Raja Haq Nawaz v. Muhammad Afzal PLD 1965 SC 354 where following view was held by Honourable Supreme Court: "Quashment of proceedings at so early a stage gives an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. It is necessary that these cases should be examined further, to ensure that the course of even-handed justice has not been prejudiced."
' For further reference see Ikramullah Khan v. Muhammad Yousuf and two others 1984 PCr.LJ 354.
7. As a result of above findings, this petition under section 561-A, Cr.P.C. Stands dismissed in limine alongwith the miscellaneous application.