MUHAMMAD NASEEM CHAUDHRL J- Muhammad Aslam respondent No. I filed the complaint for the prosecution of the petitioners-accused under sections 324, 337-A (iii), 337-F (i),ii)/148/149/109 PPC in the. Court of Rai Zafar Abbass Magistrate Section 30, Hafizabad (respondent No. 2). The preliminary statement of Muhammad Aslam complainant-respondent No. 1 as well as the preliminary statements of Muhammad Ishaque PW-2, Muhammad Aslam PW-3, Saif Ullah PW-4.
Muhammad Pannah Aslam PW-5, and Jahangir PW-6, have been recorded which are in the had of the Reader of the Court and have been signed by the aforesaid Magistrate Section 30, Hafizabad.
Expressing that the evidence could not be recorded by the reader of the Court and that there being no certificate about the reason of inability of the trial Magistrate to record the statements of the PWs the petitioner-accused have filed this criminal miscall, petition for the quashment of the proceedings conducted by the trial court. This petition has- been resisted by Muhammad Aslam No. 1-complainant.
2. On 26.3.1997 M. Dawood Ahmad Reader of the trial Court appeared when he as well as the learned counsel for Muhammad Aslant Respondent No. 1 admitted that the preliminary evidence was written by the previous Reader of the Court and was not in the had of the learned Magistrate. A perusal of the record has made out that The trial Magistrate did not record the reason of his inability in the matter of scribing the preliminary statements of the PWs.
3. I have heard the learned counsel for the contesting parties and gone through the record before me. Relying on Munshi Ahmad and others vs. Maulvi Abdul Hannan (1987 P.Cr.L.J 2299 Lahore) and Tahir Javed and others Vs. Abdur Razzaq and others (PLD 1995 Lahore 261) learned counsel for the petitioners - accused argued that the evidence recorded by the Reader of the Court could not form the basis of the summoning of the petitioners as the accused. On the contrary learned counsel for Muhammad Aslam respondent No. 1/complainant laid the emphasis that the preliminary statements of the complainant and the PWs could be recorded by the Reader of the Court as there is no bar in the Code of Criminal Procedure in this regard and that section 355 (3) of the Code of Criminal Procedure stood attracted when the fully-fledged trial was under process after formulation of the charge. In my view the reasoning adopted by the learned counsel for the petitioner has to prevail and the aforesaid rulings relied upon by him are applicable to the instant matter. I would express that the fact of the matter is that a Reader of the Court cannot assume the role of a Magistrate exercising powers of any class. The justice has to be administered by the presiding Officer of the Court and in whole of the Scheme of Criminal Procedural Law the Reader has not been directly empowered to record the statements of the PWs or to write announce the judgment etc. Muss fuss is emanating about the poor working of the subordinate Courts. It is alleged that in the absence of the Presiding Officers the evidence is record by the readers. There is no material on the record to make out in the instant matter that preliminary evidence was recorded under the supervision of the presiding officer. Unfortunately the trend of such type of working is increasing alarmingly and it has laid down the foundation of injustice in most of the subordinate courts. Finding support from the aforesaid wealth of the case-law' relied upon by the learned counsel for the petitioners which pertains to the working of the trial Court at the initial stage of the recording of the preliminary evidence, I hold that the preliminary proceedings and the impugned order about the summoning of the petitioners as the accused are illegal and without lawful authority. Such an illegal working of the trial Court is not even curable under section 537 of the Code of Criminal Procedure.
4. For what has been said above, I accept this criminal miscall, petition, declare the proceedings conducted by the Trial Court as without lawful authority and illegal set aside the impugned order dated 19.2.1996 summoning the petitioner as the accused and remand the case to the Area Magistrate to proceed further in the matter in accordance with law who shall record the preliminary statements of the complainant and the PWs with his on had and shall proceed further in accordance with law.
5. Muhammad Aslam respondent No. 1 complainant shall appear before the Ilaqa Magistrate on 2.10.1997 so that the matter is taken up by him on that date. In xase the judicial file is not with the present Ilaqa Magistrate the same stands transferrerd to his Court who shall proceed further after procuring the same from the Court where it is lying.