The brief facts out of which the present writ petition arises are that respondent No.1 filed a complaint against the petitioner before respondent No.2.
2. The learned counsel of the petitioner submits that respondent No.1 filed a complaint before the Deputy Commissioner, Annexure-A, attached with the writ petition, is not a complaint in the eyes of law nor the procedure prescribed in sections 200 and 202, Cr.P.C. Has been followed and entrusted to respondent No.2, who without examining the complaint issued notice to the petitioner.
3. The writ petition was admitted for regular hearing vide order, dated 27-11-1997. Office sent notice to respondent No. l on 3-3-1998 for 15-4-1998. The report of the Process Server, dated 11-4-1998 reveals that the complainant was not at his residence and is hided himself somewhere, therefore, notice was pasted on the outer door of his residence. Office subsequently sent notice to respondent on 3-3-2002 for 8-4-2002, 10-4-2002 for 15-4-2002, 24-4-2002 for 25-5-2002, 8-6- 2002 for 10-7-2002, 17-9-2002 for 16-10-2002 and 25-10-2002 for 20-11-2002. The respondent No.1 despite of aforesaid notices, did not enter appearance, despite repeated calls, therefore, ex parte order is passed against respondent No. 1.
4. The learned Additional Advocate --General submits that in view of the notices sent by the office to respondent No. l and he did not enter appearance then it appears that respondent No. l is not interested to pursue the matter any more.
5. I have given my anxious consideration to the contention of the learned counsel of the parties and perused the record.
6. The Deputy Commissioner entrusted the complaint to respondent No.2. Respondent No.2 did not follow the mandatory procedure prescribed under sections 200 and 202, Cr.P.C. It is settled principle of law that when a thing is to be done in a particular manner, it must be done in that particular manner and not otherwise as per principle laid down by the superior Courts in "Khalid Nawaz. v. The State" (1999 PCr.LJ 391), Muhammad Malik alias Maloo v. The State" (1989 PCr.LJ 599) and Atta Muhammad Qureshi v. The Settlement Commissioner (PLD 1971 SC 61). It is settled principle of law that the Magistrate before issuing processes to the accused in private complaint, are under statutory obligation as contemplated by section 202, Cr.P.C. To satisfy themselves for the purpose of ascertaining truth or falsehood of the complainant as per principle laid down by Peshawar High Court in "J. S. Daver v. Iqbail Qadir and another" (PLD 1962 (W.P.) Peshawar 167). In case, this mandatory provision of law i.e. In section 202, Cr.P.C. Has not been complied with, therefore, the proceedings pending against the petitioner) before respondent No.2, are ill-founded and must be quashed as per principle laid down by Karachi High Court in "Saffar v. Qadar and another" (PLD 1963 (W.P.) Karachi 15). Mere reading of section 200, Cr.P.C. Reveals that it is essential requirement that substance of the examination of the complainant shall be reduced to writing and shall be signed by the complainant and also by the Magistrate. In arriving to this conclusion, I am fortified by the law laid down by this Court in ---Anwar Mahmood and others v. Rashid-uz-Zaman- -- (PLD 1959 (W.P.) Lahore 186). Under the aforesaid provision of law, it is the duty and obligation of the concerned Magistrate to satisfy himself and prima facie case has been made out against those, who are the accused of criminal offence, after applying his independent mind. Reference can be made in "Gulzar Ahmad. v. Sind-Punjab Goods Transport Co." (PLD 1966 (W. P.) Karachi l 253) and "Gulab Khan v. Fazal Hussain ands another" (1968 PCr.LJ 730). Respondent No.2 has initiated proceedings without following the mandatory provisions of law, therefore, the impugned order of respondent No.2 is set-aside and the complaint filed by respondent No. l is dismissed/quashed.
N.H.Q./N-258/L