MANZOOR AHMED and 5 others vs THE STATE and anothers
This matter comes before the Peshawar High Court through a petition under section 561-A of the Code of Criminal Procedure 1898, seeking the quashment of an F.I.R. registered under section 188 of the Pakistan Penal Code 1860 for violating an order promulgated under section 144 of the Code of Criminal Procedure 1898. The core legal question revolves around whether a private individual who is not a public servant is competent to lodge a complaint and set the criminal law in motion for an offence under section 188 of the Pakistan Penal Code 1860 without fulfilling the mandatory requirements of section 195 of the Code of Criminal Procedure 1898. Answering in the negative, the court held that under section 195(1)(a) of the Code of Criminal Procedure 1898, no court can take cognizance of an offence under section 188 of the Pakistan Penal Code 1860 except on the written complaint of the public servant concerned or a superior public servant to whom such servant is subordinate. Consequently, since the complainant was a private individual rather than a public servant, the F.I.R. and its registration were without lawful authority. The petition was accepted and the F.I.R. was quashed.
- Can a private individual who is not a public servant lodge a complaint for an offence under section 188 of the Pakistan Penal Code 1860?
- Whether the bar contained in section 195 of the Code of Criminal Procedure 1898 applies to the registration of an F.I.R. under section 188 of the Pakistan Penal Code 1860?
- Is an F.I.R. registered on the motion of a private person for violation of a public servant's order liable to be quashed under section 561-A of the Code of Criminal Procedure 1898?
- Section 561-A, Code of Criminal Procedure 1898
- Section 188, Pakistan Penal Code 1860
- Section 144, Code of Criminal Procedure 1898
- Section 195, Code of Criminal Procedure 1898
- Section 195(1)(a), Code of Criminal Procedure 1898
' QAISER RASHID KHAN, J.---The petitioners through the instant petition under section 561-A, Cr.P.C.
Seek the quashment of F.I.R. No,176 dated 24-7-2011 of Police Station Paroa, District D.I.Khan registered against them under section 188, P.P.C.
121 (sic) Brief facts of the case are that Mir Alam Khan, complainant/respondent No,2, had moved an application to the DPO D.I.Khan for registration of case under section 188, P.P.C. Against the petitioners and another, namely, Ahmed son of Ali, on the ground that they had violated the order of DCO D.I.Khan passed under section 144, Cr.P.C. The application was marked to the S.H.O. Police Station Paroa for necessary legal action and report. The S.H.O. Marked the said application to the A.S.-I. For doing the needful, who vide his final report responsible to have violated the order of DCO passed under section 144, Cr.P.C. And thus registration of case was recommended against them under section 188, P.P.C. Which was accordingly registered vide F.I.R. Ibid, while Ahmad son of Ali was reported to be dead. Hence this petition.
13. Learned counsel for the petitioners vociferously argued that the complainant was not competent to lodge the F.I.R. In question because he was not a public servant within the meanings of section 195, Cr.P.C. He argued that the order of DCO under section 144,. Cr.P.C. Was passed against the tenants while the petitioners were not so as is evident from the Revenue Record. He contended that the mala fide of the complainant was proved from the fact that though he had charged Ahmad son of Ali as an accused in the case, but he was found to have died much earlier than the lodging of the instant F.I.R. Which is duly mentioned in the final report of the Investigating Officer. The learned counsel submitted that there is an unexplained and inordinate delay in making the complaint because the order of DCO under section 144, Cr.P.C. Was effective from 23-4-2011 'up to 23-5-2011 while the complaint in hand was filed on 18-6-2011 and thus the registration of F.I.R.
Was unjustified.
14. Conversely, the learned Deputy Advocate-General appearing on behalf of the State assisted by the learned counsel for the complainant opposed this petition on the grounds that the petitioners were found guilty of the offence under section 188, P.P.C. In a detailed inquiry conducted by a responsible Police Officer and thus the F.I.R. In question was rightly registered against them. It was argued that the submissions made by the learned counsel for the petitioners relate to the merits of the case which can at best be adjudged during trial.
15. Arguments heard and record perused.
16. Admittedly, the complainant was not a public servant but a private individual and thus he was not competent to file the complaint in hand. The provisions of section 188, P.P.C. Can be pressed into service only when compliance to section 195, Cr.P.C. Is proved. For ready reference, section 195(1)(a), Cr.P.C. Is reproduced below:-- "No court shall take cognizance (a) of any offence punishable under sections 172 to 188, PPC, except on the written request of the public servant concerned, or of some other servant to whom he is subordinate".
17. It, therefore, follows that neither the. Complainant was himself a public servant nor subordinate to anyone and thus he was not competent to have lodged the present complaint in view of the express embargo placed on a private person to approach the police for registration of the case under section 188, P.P.C.
18.. As a result, the registration of F.I.R. Was not justified which is liable to be quashed.
19. As a corollary to what is discussed above, this petition is accepted and the F.I.R. In question is quashed.