Hafiz MUHAMMAD IQBAL vs THE STATE and another

ORDER

' MUHAMMAD AKRAM QURESHI, J.--- It has been intimated by the learned A.A.-G. That the report, of Police Officer under section 173, Cr.P.C. Has already been submitted before the Court of competent jurisdiction on 4-8-2006 and the case is pending for trial.

2. I am afraid, judicial proceedings ,cannot be quashed by exercising powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

3. At this juncture, learned counsel for the petitioner submits that A the present writ petition may be converted into application under section 561-A, Cr.P.C. And the proceedings pending before the Court of learned Illaqa Magistrate be quashed.

4. The request being genuine is allowed. Let this writ petition be converted into petition under section 561-A Cr.P.C. Be registered.

5. Briefly, the facts of this case are that Home Department Government of Punjab had issued a circular prohibiting the publication, supply of possession of "Daily Al-Fazal". An information was received by Muhammad Saleem, S.-I. That sufficient number of copies of prohibited "Daily Al-Fazal" are available with the petitioner and others. A raid was conducted. On seeing the police party, the accused persons fled away. During search, 31 copies of prohibited "Daily Al-Fazal" were recovered from the office of the petitioner. As a result, the present F.I.R. Was registered against him under section 188, P.P.C.

6. Learned counsel for the petitioner has drawn the attention of this Court towards the definition of word "complaint" which is as under:- S.4(h) "Complaint" Means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the reports of a Police Officers."

' Learned counsel for the petitioner further submitted that section 173, Cr.P.C. Defines the word "Report of Police Officer" which is as under:--- "(1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer incharge of the police station shall (through the public prosecutor),

(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given."

' Learned counsel for the petitioner also submitted that word "Challan" is alien to the provisions of Cr.P.C. However, the report of Police Officer has been defined as challan by Police Rules, 1934.

Learned counsel contends that word "complaint" excludes the word "report of Police Officer" from its ambit and report of a Police Officer is not a complaint.

' Learned counsel for the petitioner afterwards draws the attention of this Court towards the provisions of sections 195(1)(c), Cr.P.C. Which deals with the provisions of sections 172 to 188, P.P.C.

And stated that a cognizance of the offence under section 188, P.P.C. Cannot be taken on the basis of report of Police Officer and secondly Muhammad Saleem, S.-I. Was having no authority at all to register this case and submit report under section 173, Cr.P.C. Before the Court of learned Illaqa Magistrate. The learned trial Magistrate was not competent to take cognizance of offence on the basis of police report submitted under section 173, Cr.P.C. He also submits that the trial Court should have taken cognizance of the offence on a complaint in writing of the officer whose orders have been violated by the accused. He further submits that taking of cognizance by the Magistrate and further proceedings are nullity in the eyes of law and the proceedings pending before the learned Magistrate be quashed.

7. Learned Law Officer has vehemently opposed this petition stating that Muhammad Saleem, S.-I.

Was fully competent to register this case. There was no embargo on the Police Officer to investigate it, record statement of witnesses and submit report under sectibn 173, Cr.P.C. He further stated that in the proceedings having been conducted by the Investigating Officer and the learned trial Court, no illegality has been committed, by any of the forums. He also stated that it is a rule that in like matters, the accused are required to approach the Court of competent jurisdiction at the first instance and in case of failure, he may submit an application under the relevant sections of law. He submitted that this Court may not take cognizance of the matter. He further submitted that heinous offence has been committed by the petitioner and that he is not entitled to the concession claimed by them.

8. After hearing the learned counsel for the parties and perusing the record, it has been noticed by this Court that the learned trial Court was not competent to take cognizance of the offence on a police report having been submitted by Muhammad Saleem, S.-I., or S.H.O. Section 4(h), Cr.P.C.

Specifically excludes the report of Police. Officer from the domain of word "Complaint". A report submitted under section 173, Cr.P.C. Cannot be considered to be a complaint as provided by section 4(h) (ibid). Section 195, Cr.P.C. Places a specific embargo upon the trial Court not to take cognizance on the report of Police Officer but on the complaint in writing of the concerned officer or of some other public servant to whom he is subordinate. In the present case, declaration to prohibit publication, supply and possession was issued by the Home Secretary, Government of Punjab. He was the only authority to lodge complaint with the Court of competent jurisdiction. In the present case, the matter was reported to the trial Court by Muhammad Saleem, S.-I. Who was having no jurisdiction to do it. Resultantly, the cognizance having been taken by the learned trial Court is illegal and the proceedings conducted by him is an abuse of process of law.

9. Consequently, the present petition is accepted and the proceedings pending before the trial Court in case F.I.R. No,227, dated 26-7-2006 registered under section 188, P.P.C. At Police Station City District Dera Ghazi Khan are hereby quashed.