' Fateh Muhammad and five others (petitioners) have moved the instant Revision petition alleging therein that one Muhammad Arshad filed a false Complaint under section 302/324, P.P.C. Against Fateh Muhammad and others. The Presiding Officer instead of recording the preliminary evidence of the Complainant in his own hand left it to his Reader who assumed the role of Presiding Officer and recorded the statements of the witnesses. No certificate was appended by the Additional Sessions Judge, Hasilpur that he prepared the memorandum of depositions of witnesses, hence the proceedings were a complete nullity in the eye of law and the impugned order, dated 3-4-1996 whereby the petitioners were summoned to face trial was perverse and illegal.When otherwise no case is made out against the petitioners from the evidence available on the file. If the learned Civil Judge to whom the inquiry was entrusted by the trial Judge under section 202, Cr.P.C. Has unambiguously opined that the case was absolutely false and groundless.
2. Having given my careful consideration to the aforesaid contentions I have not been able to persuade myself to adjudge the impugned order, dated 3-4-1996 whereby the petitioners were summoned to face trial in the aforesaid complaint case as illegal, void and without authority.
3. As regards the first contention it is significant to note that in cases in which the evidence is not taken down in writing by the Magistrate or Sessions Judge/Additional Sessions Judge, he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness deposes and such memorandum shall be written and signed by the Magistrate or Sessions Judge with his own hand, and shall form part of the record. If the Magistrate or Sessions Judge is prevented from making a memorandum as above required, he shall record the reasons of his inability to make it.
4. There is nothing on the record which may tend to show that the preliminary evidence was recorded by the Reader of the Court. It is significant to note that this objection was not raised before the trial Judge. Every statement, is signed by the learned Additional Sessions Judge. Even otherwise, it is now well-settled that failure of the Presiding Officer to prepare memorandum of depositions of witnesses as envisaged under section 356(3), Cr.P.C. Is an irregularity curable under section 537, Cr.P.C. But assuming without conceding I that the learned counsel for the petitioners is right in his contention that the preliminary evidence was recorded by the Reader no actual prejudice appears to have been caused to the petitioners by the aforesaid irregularity. The object of section 357, Cr.P.C. Is after all to secure as faithful and accurate the record of what each witness says in Court. Learned counsel when asked to produce a positive proof of his assertion that the preliminary evidence was recorded by the Reader, failed to do so nor he could point out any prejudice caused to the petitioner by the aforesaid irregularity if any. I, therefore, over rule his first objection.
5. As regards the second objection, learned trial Judge has observed and rightly so, that opinion of the Inquiry Magistrate was not binding on the trial Judge.
6. The discretion of the High Court to interfere with the orders passed by the subordinates is unfattered. However, this power is to be exercised sparingly and only when grave injustice is likely to be done (PLD 1974 Note 110,p. 164 (AJ&K) or where there has been clear miscarriage of justice or order is illegal or perverse or it appears that grave injustice has been done by the impugned order.
1983 PCr.LJ 1985.
7. Applying the aforesaid principles I am convinced that it is not a fit case in which this Court should interfere and set aside the impugned order, simply because the Inquiry Magistrate had opined that the case was absolutely false and groundless because it was not within the competency of the Magistrate to pass a judgment in a case which is exclusively triable by Court of Sessions.
8. The revision petition is devoid of force which stands consequently dismissed.
9. Before parting with this order I direct the trial Court to consolidate the challan case registered against Liaqat Ali and others at the instance of Fateh Muhammad, complainant who is the petitioner in this case under section 148/324/302 149, P.P.C., registered vide F.I.R. No,200 on 9-5-1995 at Police Station Hasilpur regarding murder of Abdul Ghaffar, deceased who was son of Fateh Muhammad, Complainant/petitioner. The private complaint filed by Fateh Muhammad wherein he implicated Mst. Samina Kausar whose name does not figure in the aforesaid F.I.R. Should also be tried simultaneously, alongwith present complaint titled as Muhammad Arshad v. Fateh Muhammad and others. The trial Court should keep in mind that this version put forward in the instant complaint was not agitated by Muhammad Arshad and others during the investigation of the murder case of Abdul Ghaffar. The complaint was filed after a considerable delay. The complainant's version was found false by the Investigating Magistrate. These are relevant points which shall he given due weight during the trial and at the time of pronouncement of judgment.
10. The petitioners shall, however, be at liberty to move an application under section 265-K, Cr.P.C.
For, their acquittal, if they are so advised. Revision